The convention met pursuant to
adjournment, was called to order by the President, and opened with prayer by
the Rev. Mr. Dix, as follows:

O Lord, our King, our God, who are
the author of law and who are the administrator of thine own government in the
armies of heaven and among the inhabitants of the earth, before Thee we would
approach this morning, with reverence and thanksgiving for Thy mercies extended
towards us, and with obligations for the bestowment of such favor and blessing
as our condition requires. We pray that Thy special favor may rest upon this
convention. Do Thou enable its members so to regulate their action that the laws
which shall be enacted in accordance therewith, shall be in accord with divine
law, and that the administration of the future government of our State may be
in accord with the divine administration.
Unto this end we pray for righteousness among the people. We pray for purity not only in the ballot,
but in that which the ballot confers. We pray that Thou wilt direct the desires
of the people of this State, that they may not be engrossed in the accumulation
of riches, but in the attainment of true wealth. We pray for purity in the
home. We pray that Thou wilt above all things grant that purity in the church
which becometh the body who is the light of the world. And we pray that as
judgment shall commence at the house of God, that it may there meet that which
conscience and divine law doth approve, and may through all the ramifications
of our State life be found that which is pleasing in the sight of God.

And now our Father be with this body
in this day's work. May that be done which shall be right and profitable, which
the people out of a pure conscience shall commend, and that Thou shall accept.
Hear us and bless us according to Thy love for the children of men that
withheld not Thine own Son, but gave him that whosoever believeth on him should
not perish, but have everlasting life, and may this be Thy gift unto these
people for Thy name's sake, Amen.

Leaves of absence were granted to
Mr. Chapman, for Thursday, Friday and Saturday; Mr. Sollie for today, and Mr.
Opp for Tuesday and Wednesday last.

Upon the call of the roll, 118
members responded to their names.

1946

OFFICIAL
PROCEEDINGS

The report of the Committee on
Journal was read stating that the journal for forty ‑ first day of the
Convention had been examined and found to be correct, and the report was
adopted.

MR. MALONE ‑ I rise to make a
motion which I gave notice of on yesterday to reconsider the latter clause of
subdivision 26, which we adopted yesterday afternoon.

PRESIDENT PRO TEM (Mr. Foster) ‑
The question is on the motion to reconsider whereby this Convention adopted the
last clause of sub ‑ division 26.

MR. O'NEAL (Lauderdale) ‑ I
move to lay the motion on the table.

(Motion was withdrawn.)

MR. MALONE ‑ My objection to
this sub ‑ division is that we have gone ahead and left out that could be
regulated by local laws. Several provisions offered by the Committee have been
stricken out, showing that this Convention does not favor those things. After
we have left out everything that we can think of here comes another clause to
take everything out, not only that we have voted distinctly should not be left
out of this, but anything else that can be thought of. I am as much opposed to
bringing matters purely local, as any other man, to the Legislature, but there
are always certain conditions in which a local law or a general law cannot be
as effective for the particular matter; and that a certain amount of elasticity
is necessary. If we have left out anything that ought to go in, I am perfectly
willing to do it; but to take in a clause that practically takes in the very
thing that we have voted down here, I think is going too far. There are certain
questions especially that I would hate to have included. We all know that one
of the main questions in the State of Alabama is the liquor traffic and the
regulation of it. We know very well that when it comes to a general law, where
the combined opposition can center upon that one law, and upon that one fight,
it is practically impossible to accomplish anything, even in a particular
county. I am sure that certain regulations that would be all right in Ashford,
Ala., will not apply to Birmingham. No question on earth about that; and my
experience shows that especially in a county with a dispensary that has a
general law for its operation and government, brings it into politics. It does
not affect me personally or locally, for we are all right; but right there in
an adjoining county dealing under a general law, I am told it took six months
to elect a manager by the mode prescribed by law. It brought on a fight in the
local courts and I don't know how far it was carried. Another place just above
me that went in under a general law, and where a fight came up, got up so much
friction, until as a matter of fact at the end of the first year the whole thing
was bankrupt, purely as a result of that matter; and

1947

CONSTITUTIONAL
CONVENTION, 1901

the very people who sold them their
goods did not get their money. Recognizing that evil, this place went to the
last Legislature and had a law passed removing those evils and it is now a
pronounced success. I ask that nothing be put in this Constitution either
prohibiting places from getting their dispensary or the mode of regulating the
whiskey traffic as they see fit, yet at the same time for pity sake don't put
us under anything that will approach the political scheme of South Carolina.
Any man who has studied it is obliged to admit that there is only one State
that would have submitted to this and that is South Carolina. Every report
personally and otherwise, shows that where each community has been allowed to
adapt it to its peculiar circumstances, except as enumerated under these
general laws, it has proven a success.

MR. SANDERS ‑ Will not the
amendment offered by me yesterday afternoon, just before adjournment,
permitting the Legislature to enact local laws regulating the liquor traffic,
meet your objections?

MR. MALONE ‑ It will; but what
assurance have we that it will he adopted? The record shows that when it was
offered it was objected to, and I submit there is a nigger in the wood pile
right here, and I can tell you where it is.

MR. WATTS ‑ By striking out
the words "or article"?

MR. ASHCRAFT ‑ I would like to
inquire how the article as amended will read if that is stricken out?

MR. PRESIDENT ‑ If what is
stricken out?

MR. ASHCRAFT ‑ The amendment
proposed by the gentleman from Limestone.

MR. WATTS ‑ The reason why the
amendment offered by Mr. Sanders is not acceptable to the committee in its
present shape is because it contains the words "or article," which
would mean if they were left in there that a liquor law would be passed without
any notice at all. Where you strike out these words "or article,"
leaves the Legislature with the right to pass a local law without giving notice.

MR. MALONE ‑ I am willing to
remedy it in any way that we can. I submit that since I have taken this
position the very people that are fighting me have come to me and said if our
dispensary was operated like yours we would not fight you. There is the nigger
in the wood pile. Let's know what we are about. I don't see anything at all
objectionable to the amendment offered by Mr. Sanders. I think it covers the
ground, but it does leave room possibly for something else to be slipped in.
Therefore, I am opposed to accepting that amendment.

1948

OFFICIAL
PROCEEDINGS

MR. PITTS ‑ I hope the
convention will pardon me a few moments. I have not as yet consumed the
valuable time of this Convention, and I would not open my mouth now if I were
not firmly convinced that the Convention on yesterday evening on the eve of
adjournment, committed a grave error in passing this subdivision 26. Now let's
see what has been done: Two committees
have been at work on local legislation, a committee on Local Legislation and a
Committee on Legislative Department, and they have reported that they have
examined the Constitution of every State in the United States and searched out
everything that could be objected to on the question of local legislation, and
the result is that they have brought in here, the two committees together, 35
prohibitions. Not satisfied with that, they have asked this Convention to pass
a clause which says that although 35 prohibitions are put upon the Legislature,
yet they want to say that no special law shall be passed whereby relief can be
obtained under a general law or where the courts can give relief; and the court
shall be the judge of the Legislature. I thought the Legislative Department was
one of the co ‑ ordinate branches of the government. I thought it was
equal in power and I thought it lead the right to control its own legislation,
and yet this committee comes in and says that the judiciary shall be superior
to the Legislature and that the judiciary shall say which laws are local and
which are not. I call upon the chairman of the committee, either one of these
committees, to name a single instance of local legislation that is not
prohibited by this subdivision.

MR. WATTS– Local legislation in
reference to whiskey.

MR. PITTS– The reason why the liquor
traffic has not been interfered with is that the Convention has that specially
excepted. I want you to name a single instance of special or local legislation
that is not prohibited under these 36 laws.
Name one other ‑ yes. there is one other, the game law, and that
was tried to be put in, but was voted down. There are only two instances, yet
this Convention says that no local law, however meritorous it might he, shall
be passed by the Legislature. We ought
to have some safety valve, and we ought to have some way of relieving it. I f
they are wrong there is a remedy. What
brought into existence the Court of Chancery? How did it originate? Because the court of common law could not
give remedies for the wrongs. This Chancery Court was established for the purpose
of giving remedies wherein the court of common law could not give a remedy.
What else can this great court do? It says that if it is not already provided
for, if some emergency should arise it can be‑

Mr. President, we have gone too far.
I admit that the Legislature for the last ten years have enacted too many local
laws, which is remedied lay these 35 prohibitions. Now why say that the
Legislature shall not pass any local law, don't make any difference how
meritorous it may be, not at all unless the court shall say

1949

CONSTITUTIONAL
CONVENTION, 1901

that redress cannot be given? Now, this is a conservative body, I have
watched it, and I have watched it closely.
I have been tempted on several occasions to get up and address the
Convention. I recognize the
conservatism of this body, and I have refrained from consuming its time;
because I assume it is conservative; and I believe this Convention yesterday
evening in the hurry of adjournment, and without deliberation or reflection,
passed this particular subdivision.

MR. O’NEAL– Gentlemen of the
Convention I desire to say that the Committee on Local Legislation studiously
avoided in their report any reference to the liquor question. While a great many members of the Committee
believed that the regulation of the liquor traffic, could be secured by general
laws by which the present system of local option or dispensary could be
continued in counties and cities of this State, yet they deemed it wisest at
this critical juncture in the affairs of the State to omit all mention of that
question and leave it to the legislature to pass any local or special law on
that subject that they might see proper.
We recognized the fact that the paramount purpose of this Convention was
to reform our suffrage and hence we thought it unwise to inject into the
Constitution any question which might cause division and antagonism among our
people. For that reason there was no
mention made of the liquor question in the report. Yet notwithstanding our assurances certain delegates in the
Convention have refused to accept the good faith of our statements. They
imagine that behind some of the provisions of this report is some masked
battery directed at the dispensary or liquor question. Some members are in a state of nervous
tension bordering on nervous prostration for fear that we will attack the
liquor question and interfere with the right of certain localities to establish
dispensaries. We are between the two
fires. On the one side are the
dispensary advocates and on the other side those who favor allowing any city in
this State to use the general funds of the State for their public schools. That
is th position we are in. If we attempt to placate the dispensary men we are
met by the gentleman from Mobile who says that we are intrenching upon their
privileges, and franchises to appropriate the money of the State to the local
schools.

Mr. Boone here arose to his feet.

THE PRESIDENT– Does the gentleman
from Lauderdale yield to the gentleman from Mobile?

MR. O’NEAL– Not now, sir.

MR. BOONE ‑ I want to state
that Mobile makes no such claim.

1950

OFFICIAL
PROCEEDINGS

THE PRESIDENT ‑ The gentleman
will be in order. The gentleman from Lauderdale declines to yield.

MR. BOONE ‑ I did not hear
him. I beg pardon. I meant no disrespect to the President or the Convention.

MR. O'NEAL ‑ On one side, as
stated by the distinguished gentleman from Jefferson, are the forces of the
moral reformers and as stated by the other gentleman from Jefferson are arrayed
the great forces of organized greed. Now you are willing, in order to
perpetuate the system in Mobile, to strike down some of the safe ‑ guards
embodied in this Constitution. You are willing to ruthlessly sacrifice some of
the most important bulwarks that protect the rights of citizens against
corporate greed and rapacity in order to frame this Constitution to suit the
deeds of a certain city in this State. Now gentlemen, if you propose to make
that the issue, I am ready to meet you. If you propose to strike down the safe guards
of this Constitution and shape it and mold it to suit the desires of one city,
in order that all other cities in this
State can lay their hands upon the moneys of the common schools of
Alabama, then take the responsibility. I desire to say upon the part of this
Committee that we protest against this action. You have the power to do
it. You formed this unholy alliance the other day. What did the Committee
do the other day ? They read you a provision providing that no special
franchise should he conferred upon corporations, individuals or associations.
The dispensary men say "we object to that because you use the word city,
municipality and county; that it might interfere with the legislature granting
a city or a municipality the privilege of establishing a dispensary. We
answered that proposition by saying that the highest tribunals in the State
have declared that the right to establish a dispensary is not a privilege. It
is a transfer by the State of a part of its police power to a political subdivision
of the State. But if that is the only objection we will strike out cities,
municipalities, or counties. We struck it out, yet after we struck it out,
after we placated the dispensary men, uprose the hosts from Mobile to lay the
whole section on the table. Now there is this unholy alliance which seems to
prevail in this Convention. You strike down the provision which leaves the
people of Alabama open to the legislature to pass any local law granting
special privileges and franchises and rights to a few favored individuals or
corporations in this State. I say when you strike down that provision, in my
judgment you say to every corporation in Alabama, "come to the
legislature, they are authorized to grant you any special law or exclusive
privilege." This convention has sanctioned it. It has in solemn convention
stricken down a safe ‑ guard which has been in the Constitution of
Alabama for over a quarter of a century. Now I will say to the friends of the
dipensary that I am perfectly willing after this article is reported to put in
a general provision `

1951

CONSTITUTIONAL
CONVENTION, 1901

that nothing in the foregoing
article shall prevent the legislature from passing any laws regulating or
prohibiting the liquor traffic in this State; but you are not satisfied with
that offer. No, the gentleman from Henry says there is a masked battery behind
every provision of the repeal, there is some secret purpose upon the part of
this Committee, which has not been declared. Our motives are impugned. Couldn't
I say with the same justice, if I was disposed to question the motives of the
delegates on this floor, which I am not disposed to do because I believe that
every delegate in this Convention is actuated by the highest and most patriotic
motives to do that which will subserve the best interests of Alabama. To question the motives of certain gentlemen
and to say with equal propriety that you are masking behind this great moral
reform in order to confer upon corporations privileges and franchises which
they ought not to have. Couldn't I say it with equal propriety because why
didn't you agree to amend it? Here is
the provision vote strike out. Let me read it to you:

Sec. 14. Granting any exclusive or
special privilege, immunity or franchise whatever, to any individual, private
corporation or association in this State."

I offered an amendment yesterday
morning limiting that to private individuals and corporations, didn't I, and
you struck it down? I excepted cities and counties. The gentleman says haven't
we enumerated every possible subject of local legislation—

THE PRESIDENT– The time of the
gentleman from Lauderdale has expired.

MR. O’NEAL ‑ I would like to
be allowed to read one section.

THE PRESIDENT ‑ Read the
section.

MR. O'NEAL (Lauderdale) ‑ Here
is one that you "shall not grant to any corporation, association or
individual any special or exclusive privilege or immunity, or to any
corporation or individual the right to lay down a railroad track. That is found
in the Constitution of twenty States, and you have stricken it out from our
Constitution.

MR. HENDERSON ‑ I desire to
call the attention of the gentleman from Dallas to the fact that in the thirty
odd subjects the Legislature is prohibited from passing of local laws already
adopted by this Convention, that section two covers every other subject, in my
opinion, that would possibly refer to the Legislature passing local laws, and
if the members of this Convention will read that section I think they will
agree with me on that subject. I desire to yield my time to the gentleman from
Mobile on this subject.

1952

OFFICIAL
PROCEEDINGS

MR. SANDERS ‑ I move that the
time of the gentleman from Lauderdale be extended five minute, in order that he
may conclude his remarks.

THE PRESIDENT ‑ Does the gentleman
from Pike yield to the motion to extend the time of the gentleman from
Lauderdale?

MR. HENDERSON ‑ Yes, if the
gentleman from Mobile shall have the balance of my time.

THE PRESIDENT – The chair can not
parcel out time so far ahead.

MR. HENDERSON ‑ Then I yield
to the gentleman from Mobile.

MR. SMITH ‑ If this is in
order‑

THE PRESIDENT ‑ Does the
gentleman yield to the gentleman from Limestone?

MR. SMITH (Mobile) ‑ No sir.
unless I am to be recognized afterwards.

THE PRESIDENT ‑ The chair does
not care to make any contracts with reference to the disposition of the time.

MR. SMITH (Mobile) ‑ I
appreciate that.

THE PRESIDENT ‑ The question
is does the gentleman from Mobile yield to the motion to extend the time of the
gentleman from Lauderdale.

MR. SMITH (Mobile) ‑ I do not.

MR. SANDERS ‑ I would like to
amend my motion, by moving that upon the conclusion of the remarks of the
gentleman from Mobile, the gentleman from Lauderdale be recognized.

THE PRESIDENT ‑ In the opinion
of the chair that motion will be out of order.

MR. O'NEAL ‑ I do not care to
impose upon the Convention, but I have not had an opportunity to discuss one
phase of the question.

MR. CUNNINGHAM ‑ I rise to a
point of order that the question before the Convention is one of
reconsideration, and therefore not an amendment, and hence the gentleman from
Lauderdale as the chairman of the committee has half an hour to discuss the
question.

THE PRESIDENT ‑ In the opinion
of the chair the point of order is well taken. The chair was in error in
calling time upon the gentleman from Lauderdale, as the thirty minutes that he

1953

CONSTITUTIONAL
CONVENTION, 1901

would have been entitled to had not
expired. Therefore the chair was in error in recognizing the gentleman from Pike.
The chair was under the impression for the moment that the Convention was
discussing this matter as upon amendment.

MR. SMITH (Mobile) ‑ And
recognizing the gentleman from Pike I take it the chair will recognize the
gentleman again‑

THE PRESIDENT ‑ The chair will
take his chances on that and see how he comes out.

MR. O’NEAL ‑ Mr. President,
and Gentlemen of the Convention. I desire to say that there was no disposition
on the part of this committee to interfere with the right of the great city of
Mobile, to continue the appropriation of the liquor licenses to her public
schools. We did not propose in our report to raise any question in reference to
that subject, but we do say to the people of Mobile, if in order to perpetuate
that system you want to shape and mold the Constitution of the State of
Alabama, so as to incorporate in the fundamental law, provisions which in our
opinion are vicious, we will resist you to the bitter end. Now that seems to be
the purpose, so far as I can judge from what has been done.

Now, in reference to this particular
section, and I want to call the attention of the Convention to the fact that
the motion to reconsider embraces the latter part of Section 1. What change
have we made from the old Constitution? We have absolutely made but one change.
The old Constitution says that no special, private or local law shall be
enacted in any case which can be provided for by the general law. Mark you the
difference– which can be provided for by general law– so that the advocate of a
dispensary when he comes to Montgomery to secure the location of a dispensary
in his city could not be met with the response that that subject can be
provided for by a general law, but he could only be met with the objection it
is provided for by general law, and if it is provided for by general law how
could you enact any local law upon the subject? Now we make another provision.
The Supreme Court in the case cited in 60 Ala., decided that under this
provision which said no special law shall be enacted which can be provided for
by a general law, it was a matter purely within the legislative discretion to
determine whether it might be provided for by a general law, hence the effort
of the framers of the Constitution to strike down the evils of local legislation
were rendered fruitless and abortive by that decision, and yet today, after a
quarter of a century under which the evils of local legislation have grown to
an alarming and dangerous extent in this commonwealth, we are asked practically
to re ‑ enact the same old provision in the Constitution of 1875, which
every man on this floor admits to be absolutely nugatory.

1954

OFFICIAL
PROCEEDINGS

MR. PITTS (Dallas) ‑ Does the
old Constitution contain a single one of the thirty ‑ five provisions
that you are now putting in the Constitution?

MR. O'NEAL ‑ That question has
been asked twenty ‑ five times. In reply I would say of course it does
not. We are here to remedy evils and not to perpetuate them.

MR. PITTS ‑ I desire to ask if
you can enumerate a single thing out of the 35 put down there?

MR. O'NEAL ‑ Yes ; I will name
you from the Constitution of other States hundreds of subjects if it did not
consume too much of the time of the Convention– regulating courts of justice,
for the assessment of paving, for supporting common schools, for vacating
streets and alleys, laying out, opening and working roads, game regulations,
fish regulations, and hundreds of subject that are not in our report.

MR. BOONE ‑ I desire to ask
the gentleman a question.

THE PRESIDENT ‑ Does the
gentleman yield?

MR. O'NEAL ‑ Yes, I yield to
one question.

MR. BOONE ‑ The gentleman
stated some minutes ago with solve vehemence that corporations could come here
now to the Legislature and get an exclusive privilege from the Legislature?

MR. O'NEAL ‑ Yes.

MR. BOONE ‑ Did the gentleman
overlook Section 23 in the Declaration of Rights adopted by this body?

MR. O'NEAL ‑ No sir, I did
not.

MR. BOONE ‑ Declaring that no
ex post facto law, or any law, impairing the obligations of contracts, or
making any irrevocable or exclusive grants of special privileges of immunities,
shall be passed by the General Assembly; and every grant of a franchise,
privilege or immunity, shall forever remain subject to revocation, alteration
or amendment." Now in the 9th section on Local Legislation it provides:
"Exempting any person, corporation, county, township, municipality or
association from the operation of any general law."

MR. O'NEAL ‑ I called the
attention of the Convention to the difference between these two sections on
yesterday, and it will occur to any lawyer who gives attention to the language
of the section, to readily see the difference, and I call my friend's attention
to it from Mobile. The preamble says you shall not grant any exclusive privilege,
but the preamble does not say that you shall not grant a special privilege.

1955

CONSTITUTIONAL
CONVENTION, 1901

MR. BOONE ‑ We argued that on
yesterday.

MR. O'NEAL ‑ I say under the
preamble you can grant a special privilege provided it is not exclusive. The
preamble does not use the word franchise, there is absolutely no such word as
franchise in the preamble. If franchise and immunity mean the same thing it
would not be necessary, but we do not think it does.

MR. BOONE ‑ I would ask the
gentleman----

THE PRESIDENT ‑ Does the
gentleman from Lauderdale yield to the gentleman froth Mobile?

Mr. O'Neal declined to submit to any
further interruption.

MR. O'NEAL ‑ The two
provisions are entirely different, and an examination by any attorney will show
that there is a difference. One prohibits the granting of an exclusive or
irrevocable privilege, but it don't prohibit the granting of a special
privilege. Now Mr. President, we strike this out and what position are we in? The Legislature can grant a special
privilege to any corporation in Alabama, and that is what we have done in
obedience to a sentiment which should not dominate the Convention. We are
laying down laws for half a century, and we ought not to put in the
Constitution any principle which we cannot sustain before the people of
Alabama, in order to placate any particular interest in this State. Now I say
to the gentleman from Henry, if you strike down this provision as to local
laws, you will emasculate the entire provision. Section 26 says "No
special, private or local law, except a law fixing the time of holding courts,
shall be enacted in any case, which is provided for by a general law." The
argument was made on yesterday, that this provision might jeopardize vested
rights, that a person or corporation might secure a local law and that
afterwards the Circuit Court would declare it unconstitutional on the ground
that it was provided for by general law. If that be true no vested rights can
be effected because if you secure a local law on any specified subject on which
you make an outlay of money, and the court should hold that the local law was
void because provided by general law, how can you be hurt– the general law
would protect you, absolutely so. Hence the argument on that ground is
absolutely without any merit. Ah, no, the sole purpose of this is to strike out
this provision for fear of some possibility or probability it might at some
future time affect a dispensary, I beg you, before you pass on this section to
pause and hesitate before you strike down this most important safeguard.

MR. FITTS (Tuscaloosa) ‑ The
distinguished gentleman from Lauderdale has seen fit to say that whenever these
exceptions are mentioned whenever an attempt is made to widen this proposition
so that the State of Alabama may be advanced morally, that there is a certain
element on this floor that become nervous and almost

1956

OFFICIAL
PROCEEDINGS

has nervous prostration. I desire to
say if anybody on this floor has shown signs of nervous prostration it has been
the fury of the gentleman himself when he meets that disposition on the part of
this house, and the temper which he has displayed. I desire to say that the
banner of moral reform is up in Alabama, and that a proposition to leave room for
moral growth does stand here, and that the gentleman from Lauderdale, or the
gentleman from the Local Legislative Committee, or any other committee, will be
met and he will be called upon every time he attempts to law down a hard and
fast rule which threatens the onward march of the dispensary or prohibition.

MR. O'NEAL ‑ Will the
gentleman permit an interruption? I said on behalf of the Committee I was
willing, and the Committee was willing to accept a proposition that this
section should not be applicable or control the sale of whiskey.

MR. GILMORE ‑ I rise to a
point of order.

THE PRESIDENT ‑ The gentleman
will state his point of order.

MR. GILMORE ‑ The gentleman
from Lauderdale did not address the President.

THE PRESIDENT ‑ The point of
order is well taken.

MR. FITTS ‑ It is the
complaint every time we ask room for this reform that we ask for leaway, that
the friends of the dispensary system rise up. I desire to say that we do rise
up. I desire to say that with these other ample limitations set here, there is
no rhyme or reason for putting anything in the Constitution that will make it
questionable in the future as to the power of the people of Alabama to
absolutely prohibit the sale of liquor even within a half square mile in the
black belt, if they desire it, and there is no rhyme or reason for putting into
this Constitution anything that will prevent the people in any locality from
establishing dispensaries whenever and wherever they please. We are taking this
issue with the gentleman, and he desires to leave the impression here that
advocates of the dispensary have formed some hidden combination with the
advocates of some corporation that desires something improper at the hands of
this Convention. I desire to say that I have never heard of such a combination,
and that it exists only in the fertile brain and excited imagination of the
chairman of this committee. I desire furthermore to say that whenever‑

A VOICE ‑ Louder!

MR. FITTS ‑ That is all right
about the louder part; I am going to say what I propose to say upon this
subject of dispensary right here and now, and I don't care whether gentlemen
holler

1957

CONSTITUTIONAL
CONVENTION, 1901

"louder" or not, I mean
for it to be heard. Because objection is made about these limitations it is
complained that it comes from the dispensary element. If there is a probability
that it might inhibit a dispensary that is reason enough for leaving it out,
and furthermore the proposition that there is a great hidden mystery or some
combination of which lie speaks, exists only in his own imagination. He says
that if the advocates of the Mobile school attack him ‑ he makes some
great threat of what he will do then. They can draw a ring and fight it out so
far as I am concerned, but as one of the advocates of the dispensary, as one of
those who does care about anything likely to the growth of this movement in
this State, or the restraint of the liquor traffic in this country which will
send the money into the general sources of revenue. I can say we should he
watchful and guarded to see that nothing is put in here to threaten the life of
these institutions, and the very disposition that the gentleman shows to fight
with so much vigor, and to abuse with so much venom in this particular instance
is a very good reason for being on the watchtower and upon guard.

MR. O'NEAL ‑ May I interrupt
the gentleman for a moment?

THE PRESIDENT ‑ Does the
gentleman from Tuscaloosa yield?

MR. FITTS ‑ Certainly.

MR. O'NEAL ‑ Didn't I
expressly disclaim any, intention to impugn the motives of any gentleman or
make any charge?

MR. FITTS ‑ And at the salve
time the very words you used, and your manner was a greater accusation in that
regard. And I say that even if there is a municipal corporation in this State,
where the proceeds of the liquor traffic goes to the upbuilding of schools ‑
in Mobile or elsewhere, where the revenue derived from the liquor traffic goes
towards education, that it is a step in the right direction, and that it ought
to he left wide open, abundant leeway for local laws to be passed to allow that
revenue to go to the education of the children of this State in other
localities in the future. The very best dispensary argument is that the
abundant profit which is taken by the saloon keeper and by the dramseller is
taken away from the individual and put into the revenues of the State and
county, and a portion of it devoted to the education of the children of the
county, therefore, whether in Eufaula or Mobile that is a good system which
accomplishes this. This is a system which is a twin brother of the dispensary,
and the same hand which would guard the dispensary from the attack of any law
that would bind it down and prevent its being built up in localities, ought to
watch and guard the local laws which take a profit from this traffic and devote
it to the education of the children. The time has come in Alabama when this is
a live and vital question, when the people of Alabama have their eyes upon the

1958

OFFICIAL
PROCEEDINGS

dispensary project, when it is on
trial in many counties of the State. It is a system that has never been
abandoned in any country of Europe, in any State in America or in any locality
wherever tried. It is, a plan that has met the approbation of the people of
Alabama whenever tried, and there is no reason why there should not be abundant
room for local laws to put it in force in every locality where it may turn out
to be desirable, and there is no reason to abuse the friends of that reform, or
the friends of any locality which adopts it. This committee can have no
righteous or good reason for putting any limitation here that does not subserve
the public interest, and I submit that such a limitation as will strike down
these efforts for moral reform, or will strike down the vested rights of
Mobile, Eufaula or any other locality that is devoting the income from the
liquor traffic to the upbuilding of mankind would be a limitation that would be
an impairment of the future growth and prosperity of the State.

MR. SMITH (Mobile) ‑ Mr.
President. nothing that has occurred in this Convention has taken me more by
surprise than the attack which has been made by the gentleman from Lauderdale
upon myself and upon my city. I had not spoken in regard to this particular
section, nor had I taken any active part either in the defeat of it or in its
reconsideration. I was opposed to it, not because I believe that the interests
of Mobile's school system were involved in this particular section, but because
I thought it unwise. Unlike the gentleman front Lauderdale. I did not believe
at that time that there was some personal or malicious motive, in the attempt
of gentlemen to put upon this Convention what I personally deemed to be an
unwise provision in the Constitution of Alabama. The gentlemen, however, has
seen fit to charge that there has been an holy alliance between the dispensary
men and the advocates of the schools of Mobile, masking, as the gentleman says,
the desire to take from the public treasury money for the upbuilding of the
interest of a private corporation; under that guise as he says, trying to
strike down the safeguards of the liberty of the people that he, the great
Chairman of this Committee, has inserted for their protection. Mr. Chairman. I
desire to say that in the first place there is no masking in any controversy
that I may raise in this Convention or on any issue that I may make with the
gentleman upon this or any other question that may be presented for discussion.
In being opposed to certain provisions of the article I have objected, not
behind any masked battery, but upon the ground frankly and openly stated that
they did affect the schools of Mobile. I have given to this Convention a full
and fair statement of the reason why I desired to protect the system, and I
asked this Convention, upon the facts there stated, to protect that interest by
making amendments to certain sections. Why it is that from my course the
gentleman should judge that I was hiding or dodging or fixing any secret
provision I am at loss to say. I do

1959

CONSTITUTIONAL
CONVENTION, 1901

not believe that the Committee on
Local Legislation participated with the gentleman in the denunciation that he
made of the school system of Mobile. I believe that the denunciations of the
Chairman are those of the individual and not of the Committee, and I therefore
have no quarrel with the Committee or with its report on account of the charges
that the gentleman has made. So far as the alliance is concerned, my friend
from Barbour spoke to me in regard to clause 9, and called my attention to the
fact that the interest of his county, and of my county were the same, conferred
with me as to opposing that section, and I agreed with him that our interests
were the same and that we should oppose it, and we did oppose it. And that, and
that alone, is the holy alliance that the gentleman refers to, but the
gentleman on the contrary, although he here declares that it is wrong in
principle to take dispensary money and apply it to the common schools, gets up
in this Convention and makes an open bid for an alliance with gentlemen in
arraying the dispensary interest against the city of Mobile. He gets up and
declares that if they will help him in his attack on my county and city that he
will put almost anything in his article to protect the dispensary law. Judge, then, gentlemen of the Convention,
between us as to who it is that is willing to trade away the safeguards of the
people in order to accomplish his purpose ‑ my purpose being the
protection of my people, his purpose being the protection of personal pride as
the author of an article that he offers to this Convention. Mr. President, that
is all that I have to say upon the personal attack that the gentleman has made,
that is all that I have to say in regard to the school system of Mobile on this
occasion. I expect the gentleman is personally piqued, not because it is in the
interest of the people, nor because it is his duty to be so, but because I
dared to vote against the provision, he threatens to make a determined fight against
a great school system, and as the gentleman says, when that issue comes I have
no doubt that he will attack it consistently from a feeling of personal anger,
and I, gentlemen, will be here to join him in the controversy and submit the
issues to this Convention. Now, Mr. President, so far as the merits of this
article are concerned I desire to say a few words. It was not my purpose to
have anything to say on the subject, but being upon my feet, I am unwilling to
take my seat and leave the impression that the question is only one of local
interest. These gentleman have, as has been repeatedly said designated every
subject matter of local legislation that their imagination could conjure up and
then they forbid any legislation on all other local subjects and provide that
the legislature shall pass no other local acts that is provided for by general
law, or where a remedy can be given by the courts. Mr. President, you nor I,
nor any man can foresee the necessities of the future. If we were able to
prophesy what those necessities would be there would be no necessity for a
legislative body meet‑

1960

OFFICIAL
PROCEEDINGS

ing every two or four years. If we
all had the foresight and wisdom that the gentleman from Lauderdale arrogates
to himself, we would look down the dim vista of the future and see what the
demands would be for the next fifty years to come, and this body would here
codify a set of laws to guide the people prosperously into a Utopian
government, free from all troubles, embarrassments and difficulties.
Unfortunately this Convention has not that prophetic power, and I do not
believe that there is a man in the Convention who has it save the Chairman of
the Committee on Local Legislation. It is for the purpose of meeting
contingencies as they arise in government affairs from time to time that we
have a legislature. It is because of the lack of this prophetic power that we
have the legislature to meet. It is one of the co ‑ ordinate branches of
government, and its purpose is to enact laws from time to time to meet
contingencies that this great Constitutional Convention cannot now foresee. If
we say you shall not do this and that, and shall not do anything else, what
have we done with the prerogatives of the Legislature? We have declared the provisions
for the formation of our government when first organized are mistakes; that it
is not necessary to have any legislative body; that what is necessary is a
Constitutional Convention and courts thereafter to hold the Legislature down
and prevent them from exercising the prerogatives that have been vested in
them. Mr. Chairman, I believe that it is unwise. I believe that the great safeguard that my friend has erected is
no safeguard, but is a folly, and I do not believe in accepting that folly
simply because a gentleman is so sensitive to any objection that may be made to
his views by another delegate in this Convention. Besides that Mr. President
the provision is sure to be the cause of unlimited controversy between our
people over their rights. When a man goes before the Legislature conceiving as
he may that what he desires is not provided for by the general law, conceiving
as he may (it may be under the advice of the very wise gentleman from
Lauderdale) that there is no remedy in the courts, and presents a question to
the Legislature, the Legislature may say to him that his purpose is provided
for by general legislation or that he can obtain it through the courts, he may
reply that he has been otherwise advised. The Legislature may ask by whom are
you advised and he may reply the gentleman from Lauderdale advised me; the
Legislature may reply, well then, there can be no mistake about it, there is no
general law.

He has demonstrated in the
Constitutional Convention that he not only knew all the law that existed at
that time, but all the law there ever would be. The man has no remedy in court
under a general law, he then asks for a special act of the Legislature to
protect these rights and equities; he invests his money upon the faith of it,
his rights become involved and his property, and litigation arises, and it may
be that he has staked his whole fortune,

1961

CONSTITUTIONAL
CONVENTION, 1901

and the courts come along and say
the Legislature was mistaken, there was a general law, or there was remedy in
the courts and the Legislature was mistaken; it may be that while there was no
general law and yet the courts may hold that it knows, and would have decided
this way or that way if he had applied to it; the court may even say that the
learned advisor applied to was mistaken. Then all the citizen has is
sacrificed, the Legislature has acted and it is conposed of honest men and
acting upon their own opinion they passed the law in good faith, local
legislation has been had, and the only resort is a litigation over the right
and destruction of property interests of the citizens. Gentlemen of the
Convention, it seems to me that they have gone too far, it seems to me that you
are putting too much confidence in the judgment and prophetic power of the Chairman
of the committee. It seems to me that it is time for him to pause and think and
become more conservative and restore to the Legislature some of the functions
that this committee has undertaken to rob it of.

MR. deGRAFFENREID ‑ This
discussion has been broader than I think the circumstances justify. I rise for
the purpose of supporting the motion to reconsider, not as the friend of a
dispensary because I know nothing about dispensaries, not as a friend of the
liquor men because I know nothing about them, and not even as a friend of the
school system of Mobile. I desire to say, however, that I have always believed
that, so far as the liquor traffic is concerned, the only way that it can be
successfully handled in Alabama is by letting each community by local laws,
declare how it shall be handled, and that so far as the school system of Mobile
is concerned, it was established by the people of Alabama before I was born and
that it has done much good in this State. Whether that school system was
rightfully or wrongfully established, it now exists, and rude will be the hand
that will undertake to strike it down. If the question is ever raised before
this Convention, I shall be found with those who shall undertake to prevent any
person placing an impediment in the path of any educational institution already
established in this State. As has been said by the gentleman from Dallas in
discussing the proposition before us, it is a very grave question as to whether
this Convention has not gone too far. We have provided 37 or 38 articles, I
don't remember the number, upon which there has been placed an absolute
prohibition on the Legislature and as to which there cannot be passed any local
law. In addition to that ‑ in my judgment ‑ the greatest safeguard
on this subject that has been placed in the Constitution we have provided that
no local law shall be passed, unless there has been given before its passage
thirty days' notice of the substance of the proposed law, by advertisement in a
newspaper, and that this fact shall affirmatively appear upon the Journal
before it shall be given validity by the courts. When we did that, gentlemen,
we went

1962

OFFICIAL
PROCEEDINGS

far enough. A government dependent
upon the Legislative Department is the freest government in the world. When you
trammel the Legislature you touch the liberties of the people. I am reminded
that across the waters there exists a government, the oldest in the world, the
freest save our own, and its parliament is untrammeled by any written constitution.
It is a law unto itself. Its Parliaments have not only seen fit at tines to
take unto itself the power to change the succession of the Kings, but it has
even sat in judgment upon the monarch even to the taking of his life. That
government today is the arbiter of the peace of the world, and its power and
its dignity are due to the power and the dignity of its Parliament. It has been
said, gentlemen, that this committee has examined every Constitution in the
United States, and from them has gleaned the various subjects prohibited to
local legislation, and has placed them in the report now being considered. I
shall ask the chairman if there was found in any Constitution in the United
States or in any Constitution of an intelligent State, the provision that the
courts and not the Legislature, shall determine whether or not a general law
exists or the courts can furnish a remedy where a remedy is sought or a right
established by a local law. I say that there is no such provision in any
Constitution of any State of the Union car of airy intelligent State anywhere.
My objection to this Section as passed on yesterday is not because it touches
the liquor traffic in any way, not because it touches any school system
anywhere, but that it provides the most fruitful source of litigation that can
possibly be provided by the Constitution of a State. The Supreme Court of
Alabama decided wisely when it declared that under the Constitution of 1875 it
was for the Legislature and not for the courts to determine, when a local bill
was before it, whether a remedy had been provided by a general law or could be
obtained through the court. That in my judgment was one of the wisest decisions
that was ever handed down by the Supreme Court of Alabama. It shut a broad door
to litigation, and when we leave here, Mr. President, we want to leave with a
Constitution about which there shall be as little doubt as possible, so that
the courts will not be called upon for fifteen or twenty years to tell the
citizens of Alabama what their rights are under that Constitution. I have
consistently, whenever I had any doubt upon any subject, voted against any
change, and frequently, although the change offered might be good— where I saw
intelligent men in this Convention differing upon the subject ‑ I have
acted upon the proposition that wherever there is a doubt it is best to take
the safe course and voted against. We are establishing a fundamental law that
can not be changed like a legislative enactment and we should never lose sight
of that fact.

MR. O'NEAL ‑ I rise to a
question of personal privilege. In my opening remarks I expressly disclaimed
any purpose to im‑

1963

CONSTITUTIONAL
CONVENTION, 1901

pugn the motives of any delegate in
this Convention. I expressly and emphatically stated that I did not doubt that
every member of this body was actuated by the highest, most patriotic and most
conscientious motives. Notwithstanding that statement, the distinguished
gentleman from Mobile has seen fit to make a personal assault upon myself, and to
state to this Convention that I am essaying the role of a prophet, and that I
am seeking to dictate what action they shall take in this matter. I protest
that there is nothing in what I said which would warrant any such construction.
I do not think this is a proper forum to bandy epithets with any gentleman, but
if the gentleman from Mobile meant to intimate that my motives were not as
conscientious and that my purposes were not as high as his own or any other
delegate's, he states what he knows is without foundation in fact and what was
not warranted by anything in this discussion. He has attempted to make me the
subject of ridicule, and to say that I am proposing to lay down the law to this
Convention, and force them to adopt a provision against their judgment. I think
that remark was unwarranted. I was simply undertaking to do my duty as my
conscience dictated, and according to the lights before me. I was simply
defending the report of my Committee, on grounds which I believed to be just
and meritorious. I expressly disclaimed any intention to impugn the motives of
any gentleman, but yet that declaration did not seem to satisfy the gentleman,
and he has gone out of his way to make an assault upon me, which I think is
absolutely as unwarranted as it is unjust, and I am surprised that a gentleman
of his high character would do it under any circumstances. I stated to him
expressly that it was not the purpose of the Committee to attack any law that
now exists by which the city of Mobile used its liquor licenses for the public
schools, but that they had made a combination to strike out a certain section.
That is true and every gentleman knows it to be true. I did not say that he was
a party to the combination, but the vote of every member from that district, indicated
that such a combination had been made. I saw some gentlemen going around
rallying the forces from that section and warning them to vote against the
subdivision and here was a solid vote against the provision.

MR. SMITH (Mobile) ‑ Permit me
to ask the gentleman a question.

THE PRESIDENT ‑ Does the
gentleman from Lauderdale yield?

MR. O'NEAL ‑ Yes, sir.

MR. SMITH (Mobile) ‑ Did the
gentleman not say in substance that the gentleman from Mobile was masking
behind ‑ at any rate engaged in a pretense of morality for the purpose of
getting money that belonged to the State, for the schools of Mobile?

1964

OFFICIAL
PROCEEDINGS

MR. O'NEAL ‑ No, sir. I said
certain gentlemen had impugned the motives of the Committee. That while we did not impugn the motives of
any gentleman, that if we were inclined to follow their tactics, we might be
justified in saying that behind the great moral reform some of them were
attempting to grant corporations privileges that they ought not to enjoy. I said that we could, with as much force,
say they were doing that, as they could say that we were concealing a masked
battery which would operate against the dispensary.

I have no disposition to dictate to
this Convention, or to compel them to follow any judgment of mine. I am simply a delegate, representing the
people of Alabama, doing my duty as I understand it, and under the
circumstances I do not think I should be the subject of such caustic remarks. I do not think this is a forum in which such
remarks should be made; and I think it is beneath the dignity of a body of this
kind to indulge in such unparliamentary conduct. I desire to say, if the gentleman from Mobile does question my
motives being as high as his own, or as conscientious, he has gone beyond the
bounds of proper debate, and his imputations I do resent. In making such imputations I desire to say
he must have known they could not be sustained by the facts, but were
absolutely and wholly without any foundation or basis.

MR. WILLIAMS (Marengo) – I rise to a
question of personal privilege. The
gentleman from Lauderdale has stated that the whole of the first district voted
solidly to strike out Section 14.

MR. O’NEAL (Lauderdale) – That was
my information.

MR. WILLIAMS (Marengo) – I do not
want to go on record as voting against section 14. I voted for it and not against it; and I am from the first
district.

MR. CUNNINGHAM (Jefferson)– I wish
to say but very little upon the pending question. As I have perhaps been one of the humble instruments of stirring
up this agitation. I feel that I owe it
to myself and gentlemen who think as I do on the floor, to submit a few
scattering remarks. I shall not
approach the subject as a lawyer, for I have no technical knowledge, nor as a
jurist, for I know nothing of the decisions of the Courts, but as an humble
citizen, and one who understands plain United States. I disclaim at the
beginning that I have any purpose to interpret the motives of the
Committee. That was not a question for
which this Convention was responsible.
The real thing at issue was what did the report contain, and what did it
do. That was the question, regardless
of the motive.

Now I undertake to say, Mr.
President, that the Committee has brought in a very abler report. So far as
local legislation is

1965

CONSTITUTIONAL
CONVENTION, 1901

concerned, it embraces the entire
field. About thirty ‑ five specific subjects they have shot at with a
rifle, and rung the bell every time. After they got through with that, they
have shot at the balance with a shot gun, and then they have turned loose a
blunderbuss, and finally, with the fourth section, covered the whole thing down
with a blanket.

It reminds me of a friend of mine
who had a horse that would not stay hitched. It took three saplings, a double
halter, a plank, some nails, and a blanket to hold him. The manner in which he
hitched him was this. He took one rein and tied it to a sapling on the right,
and the other rein to a sapling on the left; he tied his tail to the sapling in
the rear, and nailed his hoofs to the plank on the ground, and after he got
through with that he covered him with a blanket and pinned that down to the
ground, and that horse never got away.

Now, there is no question with the
adoption of the thirty ‑ five subdivisions, and with section four of this
article, that they have practically excluded all questions of local legislation
with the possible exception of game. Now, Mr. President, I hope that this
motion to reconsider will prevail. I believe that if we knock out the section
which is now proposed to be reconsidered, and section four of this article, we
would have a most excellent Article upon the question of local legislation. One
in which there is sufficient elasticity to cover all the grounds, and all the
issues that may possibly arise. In this connection, gentlemen, I desire to read
to you a part of a section that has already been adopted in the bill of rights,
and it is this: "That the judicial shall never exercise the legislative
and executive powers, or either of them, to the end that it may be a government
of laws, and not of men."

With the limited experience that I
have had in the legislature, I know that the purpose of the Committee on the
judiciary, is to pass upon the constitutionality of questions. Now, instead of
this Committee passing upon this question, it is to be left to the courts in
this particular section. Not in a general way, as applied to all of our
statutes, but in a particular way as applied to local legislation, and it seems
to me that we set at defiance the ordinance already adopted in the bill of
rights. That being the case, I want the legislative and the judicial
departments kept distinct, as we have already adopted in the bill of rights. I
hope that the motion to reconsider will prevail, and then I hope the Convention
will knock that entire section out.

MR. WATTS ‑ Mr. President, I
think there is a total misapprehension in this matter. There is no desire on
the part of this Committee to throttle anybody; we are simply trying to perform
our duty in the matter which was submitted to us. We were appointed a committee
to cure the evil of local legislation, and I must‑

1966

OFFICIAL
PROCEEDINGS

confess that we started out with a
view of stopping up every possible gap which the Legislature could get through
on this question of local legislation. This report is not aimed at liquor or
dispensaries any more than it is aimed at any other thing. It is aimed at local
legislation; it is aimed at the Legislature taking up its time in passing on purely
local matter. The committee has indicated that it is willing in order to
satisfy these gentlemen who say so much about liquor, by incorporating an
amendment in Section 4 which will say that as to liquor laws the Legislature
may pass them by giving the notice which is mentioned in Section 2. That ought
to satisfy any reasonable man. I have noticed, Mr. President and gentlemen of
the Convention, that there are a great many sore toes in this Convention, and
that no matter what the subject broached, one is always treading on somebody's
sore toe without ever knowing that you were within a mile of it. Now, as to the
proposition advanced by my distinguished friend from Jefferson and my
distinguished friend from Limestone, that this provision would be in contravention
of that provision of the Bill of Rights which said that the Executive and
Legislative and Judicial Departments should be separated. I respectfully differ
with them, and insist that it is but carrying out that provision. If we were to
delegate to the Legislature to determine whether or not a matter of local
concern which was introduced before them had already been provided for by
general law or delegated to them the right to determine whether or not it could
be provided for by any court. that would be investing the Legislature with the
functions of the judiciary and violating the very provision which the gentleman
refers to, and putting this provision in here that the courts and not the
Legislature shall determine whether or not a matter is provided for by the
general law or has been or can be provided for by a court, you simply hire to
each department its peculiar function and do not infringe upon that of the
Legislature. Now, Mr. President, this matter has taken a wide range; has been a great deal said here that has no
reference whatever to the matter under discussion: a great deal has been said
about dispensaries and about liquor laws and the Mobile school law. This
Convention must bear in mind that this law is not retroactive, it does not
repeal any local law now in existence; it does not lay its hand on any local
interests which have already been protected by the Legislature, but it simply
says that in future the Legislature shall not pass local laws except under the
conditions of this Article; and it may repeal such as are now in existence by
pursuing the same forms which would be necessary to pass a new law, and I
submit, Mr. President, that it is not improper for this Convention to say to
the Legislature, in view of the past history of this State, that whenever a
matter of local concern is proposed to you, you shall not judge whether or not
that is provided for by general law, or whether it can be provided for by any
court, but the court

1967

CONSTITUTIONAL
CONVENTION, 1901

shall determine that question, and
you shall not pass any law which is already provided for by the general law,
and you shall not pass a law which can be provided for by the courts. As an
illustration, I was informed that in a recent session of the Legislature, a bill
was introduced to relieve a minor 20 years of age of the disabilities of non ‑
age. Now there is a general statute upon the books that any minor over the age
of 18 years can, by application to the Chancellor, with proof, be relieved.
Why, then, was it necessary for the Legislature to take up the public time,
and, at the public expense, to grant to this minor the removal of his
disabilities, when it could be done for $15 or $20 through the courts. If this
provision had been in the Constitution at that time, no such provision could
have been considered, and the object of this is because the Supreme Court had
decided that the provision in the old Constitution, which we have copied here,
must be construed as giving the Legislature the sole power or judging whether
or not a law is provided by general law, or the relief sought can be granted by
any court, and this provision is to put it in the courts instead of with the
Legislature, and if we were to adopt the old provision of the Constitution,
without this addenda to it, we would be held to have agreed to the opinion of
the Supreme Court, and agreed that hereafter the Legislatures might determine
these things for themselves. I submit that when we put an amendment to Section
4, which is to come up for consideration, that the Legislature may pass local
laws as to liquor by giving the notice provided in Section 2, that that is all
that any fair man can ask in reference to liquor, and I submit, Mr. President,
that this discussion has gone far enough, and I move the previous question.

MR. BULGER ‑ I desire to ask
the gentleman a question? What becomes of vested rights under the law passed by
the Legislature before the court passed
upon the question as to whether it can be provided for by general law?

MR. WATTS ‑ I answered
yesterday; there are some lawyers in every Legislature who will know whether a
particular measure is covered by a general law, or whether the relief sought
can be granted by a court. The provision is not that the matter could be
provided by a general law, but whether it is, and any lawyer can tell whether
it is provided for, although nobody could tell whether it could be provided
for.

MR. WHITE ‑ I wish to ask the
gentleman a question. Do I understand from the committee that in the event this
motion to reconsider is not carried, and this section is allowed to remain in
force, that the committee will then offer an additional section or provision
saying that this shall have no application to the enactment of any local law
for the regulation of the whiskey traffic?

1968

OFFICIAL
PROCEEDINGS

MR. O'NEAL ‑ I desire to state
that I will introduce a section of that kind, as I have repeatedly stated.

MR. WATTS ‑ I desire to answer
the gentleman's question. We are willing to say that the passage of local laws
in reference to liquor shall be passed in accordance with Section 2, but not
that it shall be passed notwithstanding this article, because that would enable
the Legislature to pass any liquor law regardless of whether the notice is
given or not. and we want notice given for every liquor law that is passed.

MR. HEFLIN (Chambers) ‑ If it
is the purpose of the committee to introduce a new section to cover this, why
not reconsider this section and adopt an amendment like this which the
gentleman from Henry has written: "provided that nothing in this section
or article shall affect the right of the Legislature to enact local laws
regulating the liquor traffic."

MR. WATTS ‑ I have already
answered that the objection is to the words "or article," which would
give the Legislature the right to pass a liquor law without giving notice. We
are perfectly willing that a local liquor law may be passed provided that the
notice is given provided in Section 2.

MR. LONG (Walker) ‑ You stated
that the lawyers in the General Assembly could advise the General Assembly was
to what laws they should have the right to pass. Would not the effect of that
be to turn over the Legislature to a few lawyers to advise and run the
Legislature, instead of the representatives of the people.

MR.
WATTS ‑ It would not.

MR. LONG (Walker) ‑ You take
it for granted that all lawyers know all the general law? Know all the law?

MR. WATTS ‑ No, it is not a
fact that all lawyers know all the law.

MR. LONG (Walker) ‑ Just those
that go to the Legislature?

MR. WATTS ‑ I think if you ask
any lawyer that pretends to be a lawyer, that he will tell you that he don't
know all the law.

MR. LONG (Walker) ‑ That is
what I thought, only those that go to the Legislature are competent to advise?

MR. WATTS ‑ No. I want to say
that there are lawyers in every Legislature, and those who are not lawyers ask
the advice of those who are as to whether or not a matter was already provided
for by a general law, and they could turn to the code of Alabama and the acts
passed since the code and see whether or

1969

CONSTITUTIONAL
CONVENTION, 1901

not that matter was provided for,
and they could answer yes or no, and the question could be also asked, can this
matter be provided for in a court, and he could turn to the code again and
ascertain.

MR. LONG (Walker) ‑ That would
have the effect of letting a lot of lawyers run the Legislature?

MR. WATTS ‑ Not at all.

MR. HEFLIN (Chambers) ‑ I will
ask how will this amendment suit, if this is added to the end: provided that
notice is given as required in Section 2 of this article?

MR. WATTS ‑ I think that would
be satisfactory, and I am willing now to ask a suspension of the rules and pass
that section.

MR. HEFLIN (Chambers) ‑ I call for the previous question

The main question was ordered?

MR. WATTS ‑ In the
reconsideration I call for the ayes and noes.

A reading of the section being
called for, it was read as follows:

No special, private or local law,
except a law fixing the time of holding courts, shall be enacted in any case,
which is provided for by a general law, or when the relief sought can be given
by any court of this State, and the courts and not the General Assembly shall
judge as to whether the matter of said law is provided for by a general law and
as to whether the relief sought can be given by any court; nor shall the
General Assembly indirectly enact any such special, private or local law by the
partial repeal of a general law.

MR. WATTS ‑ I want to call the
attention to the fact that the whole of Section 1, of which that is a part, has
been adopted by this Convention, and we cannot entertain a motion to reconsider
the adoption of a part of the section without reconsidering the adoption of the
whole of Section 1.

THE PRESIDENT ‑ In the opinion
of the Chair this section was considered differently from other sections. It
was considered subdivision lay subdivision, and a separate vote was taken upon
each, and therefore it seems to the Chair that the Convention might reconsider
its action in the adoption of one subdivision without reconsidering the whole.

MR. WATTS ‑ But the Chair
forgets that there was a vote adopting the whole of Section 1.

1970

OFFICIAL
PROCEEDINGS

THE PRESIDENT ‑ The Chair does
not so recollect. The Secretary states the Journal does not bear out the
recollection of the gentleman from Montgomery.

Upon the call of the roll, the vote
resulted as follows:

AYES

Ashcraft,

Heflin,
of Chambers,

Parker
(Cullman),

Banks,

Heflin,
of Randolph,

Parker
(Elmore),

Barefield,

Henderson,

Pearce,

Bethune,

Howell,

Pettus,

Blackwell,

Hodges,

Pillans,

Boone,

Inge,

Pitts,

Brooks,

Jackson,

Reese,

Bulger,

Jones,
of Bibb,

Renfro,

Burns,

Jones,
of Hale,

Robinson,

Carmichael,
of Colbert,

Jones,
of Wilcox,

Rogers
(Lowndes),

Carmichael,
of Coffee,

Kirk,

Rogers
(Sumter),

Cobb,

Kirkland,

Samford,

Cunningham,

Knight,

Searcy,

Dent,

Ledbetter,

Sentell,

deGraffenreid,

Long
(Walker),

Sloan,

Duke,

Macdonald,

Smith
(Mobile),

Eley,

McMillan
(Baldwin),

Smith,
Mac. A.,

Eyster,

McMillan
(Wilcox),

Smith,
Morgan M.,

Fitts,

Malone,

Sorrell,

Foshee,

Martin,

Stewart,

Foster,

Maxwell,

Tayloe,

Freeman,

Merrill,

Thompson,

Gilmore,

Miller
(Wilcox),

Vaughan,

Graham,
of Montgomery,

Murphree,

Weatherly,

Grant,

NeSmith,

Williams
(Elmore),

Grayson,

Norwood,

Wilson
(Clarke),

Greer,
of Perry,

Oates,

Winn,

Harrison,

Opp,

TOTAL ‑ 83

NOES

Messrs.
President,

Davis,
of Etowah,

Howze,

Almon,

Espy,

Jones,
of Montgomery,

Beddow,

Ferguson,

Kyle,

Burnett,

Fletcher,

Leigh,

Byars,

Glover,

Long
( Butler),

Cardon,

Graham,
of Talladega,

Lowe
(Lawrene),

Carnathon,

Greer,
of Calhoun,

Miller
(Marengo),

Case,

Haley,

Moody,

Cofer,

Handley,

Norman,

Coleman,
of Walker,

Hinson,

O'Neal
(Lauderdale),

Davis,
of DeKalb,

Hood,

O'Neill
(Jefferson),

1971

CONSTITUTIONAL
CONVENTION, 1901

Phillips,

Selheimer,

Weakley,

Porter,

Spears,

White,

Proctor,

Spragins,

Whiteside,

Reynolds
(Chilton),

Waddell,

Williams
(Barbour),

Sanders,

Walker,

Williams
(Marengo),

Sanford,

Watts,

Wilson
(Washington),

TOTAL – 51

ABSENT OR NOT VOTING

Craig,

O'Rear,

Altman,

Jenkins,

Palmer,

Beavers,

King,

Reynolds
(Henry),

Bartlett,

Locklin,

Sollie,

Browne,

Lomax,

Studdard,

Chapman,

Lowe
(Jefferson),

Willet,

Coleman,
of Greene,

Morrisette,

Cornwall,

Mulkey,

MR. SANDERS ‑ I have an
amendment offered by the committee. The amendment was read as follows: Amend
Subdivision 26 by adding thereto the following words: "Provided that
nothing in this section or article shall affect the right of the Legislature to
enact local laws regulating or prohibiting the liquor traffic. Provided, that
notice is given as required in Section 2 of this article."

MR. WILSON (Clarke) ‑ I desire
to offer an amendment to the amendment.

The amendment was read as follows:
Add to the amendment by striking out the words "and the court and not the
General Assembly shall judge as to whether the matter of said law is provided
for by a general law and as to whether the relief sought can be given by any
court."

MR. HARRISON ‑ I sought
recognition, Mr. Chairman, but the purpose for which I rose could not now be
accomplished, as there is an amendment to the amendment.

MR. ROBINSON ‑ The amendment
of the delegate from Clarke is the identical amendment which was laid on the
table yesterday.

MR. .WILSON (Clarke) ‑ I
desire to say that it is not the same. With this amendment that I now offer is
the amendment of the delegate from Limestone and the two are coupled together
so that that makes a difference.

MR. ROBINSON -There was a motion
yesterday to strike out those identical words.

1972

OFFICIAL
PROCEEDINGS

MR. SANDERS ‑ I move to lay on
the table the amendment of the gentleman from Clarke.

THE PRESIDENT ‑ The gentleman
from Lee has the floor.

MR. HARRISON ‑ I thought I
had, but was not sure.

MR. WADDELL ‑ A parliamentary
inquiry.

THE PRESIDENT ‑ The gentleman
will state the question of inquiry.

MR. WADDELL ‑ Is not this
whole matter out of order. Are we not just considering the matter of
reconsidering the Section ? THE PRESIDENT ‑ It has already been
reconsidered.

MR. WADDELL ‑ Can you go
further until it comes up in regular order.

THE PRESIDENT ‑ That point
seems to be well taken. The question before the House was the question of
reconsideration and when that was acted upon that disposed of the matter as to
the report of the Committee until it was reached in regular order and it seems
to the Chair the next order of business will be the call of the standing
committees.

MR. ASHCRAFT ‑ Has not the
hour passed for that?

THE PRESIDENT ‑ For the call
of the delegates to introduce resolutions, etc., but not the call of the
Committees to report.

MR. PETTUS ‑ I rise to a point
of order. Did I understand the Chair to hold that this matter is not up for
consideration?

THE PRESIDENT ‑ Yes.

MR. PETTUS ‑ Then I would call
the attention of the Chair to the fact that when a motion is made to reconsider
at the morning session, it shall be taken up and acted upon at once.

THE PRESIDENT ‑ And the motion
to reconsider has been passed on. The motion prevailed but now the report is
not up for consideration.

MR. HARRISON ‑ I desire to
have it understood that I have the floor when the report does come up for
consideration.

THE PRESIDENT ‑ The Chair will
try to keep the gentleman in mind, and if he is on his feet before others, the
Chair will try to see him.

MR. JONES (Hale) ‑ I rise to
move a reconsideration of the vote whereby Subdivision 22 of Section 1 of this
article was adopt

1973

CONSTITUTIONAL
CONVENTION, 1901

ed yesterday. It relates to the
jurisdiction and fees of Justices of the Peace and constables. If the
Convention reconsiders, I wish to substitute the word "increasing" in
lieu of the word "regulating" which would make it read
"increasing the jurisdiction and fees of Justices of the Peace or the fees
of constables."

THE PRESIDENT ‑ Did the
gentleman vote for that?

MR. JONES (Hale)– Yes, for the
special purpose.

MR. WATTS ‑ Is it not too late
to make a motion to reconsider ?

THE PRESIDENT ‑ It seems to
the Chair not. The gentleman moves to reconsider the vote by which Subdivision
23 was adopted.

MR. OATES – As I understand the
object as stated by the delegate for offering his amendment that is embraced in
the subdivision the way it now stands.
What is the change the gentleman proposes to make?

MR. JONES (Hale) ‑ You don't
catch my idea. I want to leave the Black Belt counties free to decrease the
fees but not to increase them.

MR. OATES ‑ Regulating would
allow the decreasing as well as increasing.

MR. JONES (Hale) ‑ That is
what I don't want. I want the Justices of the Peace of a particular county
confined to a precinct, and to take away his criminal jurisdiction. This matter
is a great burden and hardship on the planters of the Black Belt and also on
the negroes. The way matters stand now no matter how obnoxious the system works
in any particular county, we have to stand it, just because the white counties
in the State have it. I can see no reason why if the people want to decrease
jurisdiction or fees it should not be done. In cases where they have county
courts to take charge of the matter I cannot see why it should be objected to
that county regulating this matter as I suggest. And I think the matter ought
to be settled here and you know that Justices of the Peace have friends here,
and have still more in the Legislature, and if it is referred to the
Commissioners' Courts they will be of the same calibre and it is well known
whereever you tackle any office, you are up against it strictly.

MR. O'NEAL– I desire to say we have
no objection to the amendment of the gentleman from Hale.

1974

OFFICIAL
PROCEEDINGS

A vote being taken, the vote by which
the Section was passed was reconsidered.

MR. COBB ‑ I made a motion
yesterday to reconsider Section 33. I want now to direct the attention of the
Convention to this amendment. It relates to boundary lines.

THE PRESIDENT ‑ Before that is
taken up: The gentleman from Chambers made a point of order against the
amendment offered by the gentleman from Clarke. The Chair has been unable to
find a record of the vote to which the gentleman referred. The Chair will be
obliged to the gentleman if he will look up the record.

MR. ROBINSON ‑ The gentleman
from Limestone (Mr. Pettus) offered the same amendment as the gentleman from
Clarke.

THE PRESIDENT ‑ The Chair will
investigate the question and rule on the point of order when the question comes
up again. The Chair will now recognize the delegate from Macon.

MR. COBB ‑ I will ask the
Clerk to read the amendment offered by the delegate from Cullman (Mr. Parker),
which was adopted to Subdivision 33.

The amendment was read as follows:
Amend Subdivision 33 by adding to the same the words "and changing the
lines of old counties."

MR. COBB ‑ My apprehension is
that if that provision remains in the law the Legislature will be deprived of
the power hereafter to change the boundary lines of old counties.

MR. PARKER (Cullman) ‑ If the
gentleman will read just ahead of that he will see that there is an exception
so that the right remains to change the boundary lines of counties.

MR. COBB ‑ I am afraid there
would be some doubt on that point. If that amendment remains it seems to me it
leaves the matter in doubt and it also seems to me that it is entirely
unneccessary and that it should be stricken out. It is entirely unnecessary for
the reason that when the report comes in from the Committee on County
Boundaries you will have this subject entirely covered. Provision will be made
and I have no doubt but that the provision will meet the sanction of this
Convention regulating the mode and manner in and by which county boundary lines
may be changed. The main feature of this is that before any change of that sort
shall be made it shall be submitted to a vote of the people whose interests are
affected, and that I think is right. It may be that I am supersensitive on this
subject. It may be that this amendment will not have the operation which I
think, but still out of abundant caution and because it is unnecessary

1975

CONSTITUTIONAL
CONVENTION, 1901

in this place I move to reconsider
the section in order to strike the amendment out. Can I move to reconsider just
the amendment or will I have to move to reconsider the vote by which the entire
subdivision was adopted?

THE PRESIDENT ‑ The gentleman
will have to make the motion to reconsider the vote by which the subdivision
was adopted.

MR. COBB ‑ Then I will give
notice of that motion and State that it is simply for the purpose of striking
out the amendment of the delegate from Cullman which I think is wholly
unnecessary.

MR. deGRAFFENREID– What is the
subdivision as passed by the house (a good many of us don't know what it is.)

THE PRESIDENT ‑ The clerk will
read the subdivision as adopted.

MR. O'NEAL ‑ The gentleman
from Macon is laboring under a total misapprehension. Section 33 was amended
yesterday to meet the objection he is now making. Mr. Parker of Cullman offered
an amendment which was adopted and the section now reads: "Providing for
the conduct of elections or designating places of voting, or changing the
boundaries of wards, precincts or districts, except on the organization of new
counties or changing the lines of old counties. That is the exception. They
cannot pass anything as to that. That is the exception from the provision.

MR. COBB ‑ I desire that
nothing shall be passed by this Convention to prohibit the legislature from
providing for a change in the boundary lines of counties.

MR. O'NEAL ‑ That is exactly
what has been done.

MR. COBB ‑ Then I would be
satisfied except for the point I make that it is wholly unnecessary here and
will be provided for elsewhere, and I do not think it is wise to put the same
provision in two places in the Constitution.

MR. deGRAFFENREID ‑ I called
for a reading and the Chair directed that it should be done but it was not
done.

MR. JONES (Montgomery) ‑ I
rise to a point of order. The time is reached when the call of the committees
is to be made and without a suspension of the rules this matter cannot be
considered.

THE PRESIDENT ‑ There is no
fixed time for the call of the committees. The rule provides that half past ten
the call of the roll of delegates for the introduction of ordinances, shall be
suspended and the regular order of business will then be resumed except when it
is interrupted by a motion to reconsider, which can be made immediately after
the approval of the journal.

1976

OFFICIAL
PROCEEDINGS

The Secretary will read the
subdivision for the reading of which the gentleman asked.

The subdivision was read as follows:
33. Providing for the conduct of elections, or designating places of voting, or
changing the boundaries of wards, precincts or districts, except on the
organization of new counties, and changing the lines of old counties.

MR. OATES ‑ I had charge of
this part of the report when this amendment was adopted. I remember that when
the amendment of the delegate from Cullman was offered I called the attention
of the Convention to the fact that I had read the report made by the Committee
on Counties and County Boundaries of which Committee, the delegate from Cullman
is Chairman, in which I thought ample provision was made for this thing, but so
far as I was concerned if he wishes it to be put in there we lead no objection,
but I called the attention of the Convention to the fact it had been
substantially reported by his Committee although we had no objection to putting
it in here.

THE PRESIDENT ‑ The question
is on the motion to reconsider the vote whereby subdivision 33 was adopted.

A vote being taken the motion to
reconsider was lost.

THE PRESIDENT ‑ The Clerk will
call the roll of standing committees. The Clerk called until he had called the
Committees on Rules.

The resolution was read as follows:
Resolved that after the present week this Convention shall dispense with all
clerks of committees except the clerk of the Committee on Rules and the clerk
of the Committee on Order, Harmony and Consistency of the Whole Constitution.
Resolved, further, that the clerks of the Committee on Rules and Order, Harmony
and Consistency of the Whole Constitution shall serve the Chairmen of the other
committees when their services are required.

MR. PROCTOR‑.Mr. President,
the gentleman‑

THE PRESIDENT ‑ The gentleman
from Mobile has the floor.

MR. SMITH ‑ I yield for the
purpose of an amendment which the Committee had intended to make.

MR. PROCTOR ‑ I desire to
offer an amendment.

1977

CONSTITUTIONAL
CONVENTION, 1901

The amendment was read as follows:
Add after the words “consistency and harmony of the whole Constitution” the
words "and the journal clerk."

MR. PROCTOR ‑ That is done by
permission of the mover of the resolution and the Chairman of the Committee on
Rules.

THE PRESIDENT ‑ The question
will be upon the amendment offered by the gentleman from Jackson to the
resolution as reported by the Committee on Rules.

MR. HOWZE – I would like to inquire
whether those two secretaries cannot perform the work for all three of the
Committees. It seems to me we should get rid of all expense possible.

MR. PROCTOR – The character of work
tat is required for our Committee is different from that require for any other
Committee. We have taken our clerk in hand and broken him in under our personal
supervision and for that reason we would like to have him retained.

MR. JONES (Montgomery)–I would like
to inquire why the Committee needs the clerk now? It may be there is a need, but I would like to be shown what is
the need.

MR. SMITH (Mobile) ‑ Matters
are being referred to the Committee on Rules that we have to report on. We have some resolutions now.

MR. JONES (Montgomery)–How many are
there now not acted on?

MR. SMITH (Mobile) ‑ I think
three.

MR. deGRAFFENREID ‑ It is very
probable that some of the Committee will need clerical work in the future. We
cannot tell. It is a fact that the clerk to the Committee on Rules is a first
class short hand writer and can do a great deal of work quickly. Some Committee
may need some clerical work and we can send to them a first class shorthand
writer. For that reason we desire to retain him on the Rules Committee. Then
the Commottee on Order, Harmony and Consistency will need a clerk.

MR. JONES (Montgomery) ‑ How
about the Committee on Journal ?

MR. deGRAFFENREID ‑ Mr.
Proctor says they have a clerk who has been broken in and understands the work.

MR. JONES (Montgomery) ‑ It is
the duty of the Committee on Journal to look over the journal to see whether it
is right and if they have a clerk to do it. We had as well dispense with the
committee.

1978

OFFICIAL
PROCEEDINGS

MR. HOWELL ‑ If it is in
order, I would like to introduce a substitute for the resolution and the
pending amendment. I think we have other employes who, with equal propriety,
might be dispensed with.

The substitute of the delegate from
Cleburne was read as follows: Whereas, the session of the Convention is being
protracted much longer than was anticipated and the expense of the same is
already beyond what was expected, be it therefore, Resolved, That a special
committee of five be appointed by the President to investigate and report at the
earliest practicable clay the advisability of reducing the number of employes
of the Convention and cutting down the expenses of the same.

MR. deGRAFFENREID ‑ I move
that the substitute be laid on the table.

The motion to table was withdrawn.

MR. HOWELL ‑ In my judgment,
we made a mistake in the beginning in having more employes than were needed. We
have ten pages at $2 a day, and everybody knows five are amply sufficient. It
occurs to me that the proper solution is to appoint a special committee to investigate
and to see what employes can be dispensed with. If we are justified in
squandering $5 of the State's money, the same rule would apply to $500 or
$5,000. I hope the Convention will not vote down this substitute.

MR. deGRAFFENREID ‑ Now I
renew my motion to lay on the table.

MR. HOWELL ‑ On that I call
for the ayes and noes.

The call was sustained.

MR. CUNNINGHAM ‑ I rise to a
point of order. The substitute of the delegate from Cleburne is not germane to
the amendment of the gentleman from Jackson, inasmuch as it raises the
appointment of a committee for the consideration of the subject, and,
therefore, introduces entirely new matter, and is out of order.

THE PRESIDENT ‑ The Secretary
will read the resolution as reported by the committee and the substitute and
the amendment offered by the gentleman from Jackson.

The resolution was read as follows:

"Resolved, That after the
present week, this Convention shall dispense with all clerks of committees,
except the clerk of the Committee on Rules and the clerk of the Committee on
Order, Harmony and Consistency of the Whole Constitution and Journal.

1979

CONSTITUTIONAL
CONVENTION, 1901

"Resolved, further, That the
clerks of the Committee on Rules, and Order, Harmony and Consistency of the
Whole Constitution and Journal, shall serve the chairman of the other
committees when their services are required."

The substitute of the delegate from
Cleburne was read as follows:

"Whereas, The session of the
Convention is being protracted much longer than was anticipated, and the
expense of the same is already beyond what was expected, be it therefore

"Resolved, That a special
committee of five be appointed by the President to investigate and report at
the earliest practicable clay the advisability of reducing the number of
employes of the Convention and cutting down the expenses of the same."

MR. LOWE ‑ May I ask for a
reading of the amendment ?

THE PRESIDENT ‑ It has just
been read.

MR. LOWE ‑ I understood there
was a resolution, an amendment to the resolution, and a substitute.

THE PRESIDENT ‑ The amendment
was added to the resolution, inserting "clerk to the Committee on
Journal." The resolution reported by the Committee on Rules is to reduce
the expenses of the Convention by dispensing with certain clerks to certain
standing committees. The provision of the substitute is to raise the committee
to investigate and report as to the propriety of dispensing with these clerks
and with others. It seems to the chair that the substitute is germane, and the point
of order of the gentleman from Jefferson is overruled.

MR. LOWE ‑ The report of the
Committee on Rules and resolution was what?

THE PRESIDENT ‑ To dispense
with all but the three clerks. The question is on the substitute of the
delegate from Cleburne, and the yeas and nays demanded and the call sustained.

MR. deGRAFFENREID ‑ The
question is on the motion I made to table.

THE PRESIDENT ‑ The chair
stands corrected. The question is on the motion to table the substitute of the
delegate from Cleburne.

The roll being called, resulted as
follows:

AYES

Almon,

Brooks,

Carnathon,

Barefield,

Carmichael,
of Colbert,

Cofer,

Bethune,

Carmichael, of
Coffee,

Coleman, of Walker,

1980

OFFICIAL
PROCEEDINGS

Craig,

Leigh,

Reynolds,
of Henry,

Cunningham,

Long,
of Butler,

Smith
(Mobile),

deGraffenreid,

Lowe,
of Jefferson,

Spragins,

Eyster,

Lowe,
of Lawrence,

Tayloe,

Glover,

Macdonald,

Weatherly.

Inge,

Parker
(Cullman),

Williams
(Barbour).

Jones,
of Bibb,

Proctor,

Wilson
(Washington),

Kirk,

Reynolds
(Chilton),

TOTAL ‑ 33

NOES

Messrs.
President,

Handley,

Oates,

Ashcraft,

Harrison,

O'Neal
(Lauderdale),

Banks,

Heflin,
of Chambers,

O'Neill,
of Jefferson,

Beddow,

Heflin,
of Randolph,

Opp.

Blackwell,

Henderson,

Parker
(Elmore),

Boone,

Hinson,

Pearce,

Burnett,

Hodges,

Pettus,

Burns,

Hood,

Phillips,

Byars,

Howell,

Pillans,

Cardon,

Howze,

Porter,

Case,

Jackson,

Sanford,

Cobb,

Jones,
of Hale,

Sanders,

Davis,
of Etowah,

Jones,
of Montgomery,

Searcy,

Dent,

Jones,
of Wilcox,

Selheimer,

Duke,

Kirkland,

Sloan,

Eley,

Kyle,

Smith,
Mac. A

Espy,

Ledbetter,

Smith,
Morgan M.,

Ferguson,

Long,
of Walker,

Sorrell,

Fitts,

McMillan,
of Baldwin,

Spears,

Fletcher,

McMillan
(Wilcox),

Thompson,

Foshee,

Malone,

Vaughan,

Foster,

Martin,

Waddell,

Freeman,

Maxwell,

Walker,

Gilmore,

Merrill,

Weakley,

Graham,
of Montgomery,

Miller
(Marengo,

Watts,

Graham,
of Talladega,

Miller
(Wilcox),

Whiteside,

Grant,

Moody,

White,

Grayson,

Murphree,

Williams
(Marengo),

Greer,
of Calhoun,

NeSmith,

Wilson
(Clarke).

Greer,
of Perry,

Norman,

Winn,

Haley,

Norwood,

TOTAL ‑ 92

ABSENT OR NOT VOTING

Altman,

Chapman,

Jenkins,

Bartlett,

Coleman,
of Greene,

King,

Beavers,

Cornwall,

Knight,

Browne,

Davis,
of DeKalb,

Locklin,

1981

CONSTITUTIONAL
CONVENTION, 1901

Lomax,

Reese,

Sentell,

Morrisette,

Renfro,

Sollie,

Mulkey,

Robinson,

Stewart,

O'Rear,

Rogers
(Lowndes),

Stoddard,

Palmer,

Rogers
(Sumter),

Willet,

Pitts,

Samford,

Williams
(Elmore).

So the House refused to table the substitute.

THE PRESIDENT ‑ The question is on the adoption of the
substitute of the delegate from Cleburne. All in favor say aye.

MR. COFER ‑ I desire to ask unanimous consent to
introduce a resolution.

A reading of the substitute was called for by Mr. Lowe and
read.

THE PRESIDENT ‑ All those opposed say no.

MR. LOWE ‑ Before the Chairman announces the vote I
desire to make the point of order that the statement should be made before the
Convention for the ayes and noes both.

MR. HOWELL ‑ I make the point of order that the vote has
been taken and substitute adopted.

MR. LOWE ‑ I should not like to call for a
verification‑

THE PRESIDENT ‑ The gentleman from Jefferson possibly
failed to hear the Chair when he submitted the question for the ayes and the
vote on the ayes had been taken.

MR. LOWE ‑ All I ask is for a verification of the
vote.

THE PRESIDENT ‑
Will the gentleman suspend until the Chair makes a statement? The Chair
submitted a vote on the ayes and the gentleman called for a resolution and as
an act of courtesy to the gentleman from Jefferson, the Chair directed the
Clerk to read the resolution.

MR. LOWE ‑ The gentleman from Jefferson considered it
as a matter of right and he was demanding it before the question was put.

MR. BURNS ‑ I rise to a point of order. The vote has
been taken on the ayes and on the noes and the result has not been announced.

THE PRESIDENT ‑ In the opinion of the Chair the ayes
have it. The ayes have it and the substitute is adopted.

MR. LONG (Walker) ‑ I would like to offer a resolution
and have it referred to the proper committee. I wanted to offer it as an
amendment on this matter, but it being disposed of my resolution will have to
go to a committee.

1982

OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ The gentleman from Cullman asked
unanimous consent to introduce a resolution but the Chair will first submit to
the Convention is there objection. There is objection.

The gentleman from Walker asks unanimous leave to introduce
a resolution. Is there object? There is objection.

MR. deGRAFFENREID ‑ I move that the rules be suspended
and the gentleman from Cullman and the gentleman from Walker be allowed to
offer their resolutions.

THE PRESIDENT ‑ The question would be on the report of
the committee as amended. By unanimous consent that might be dispensed with.

MR. deGRAFFENREID ‑ I understood the House had adopted
the substitute and that the report of the Committee on Rules has been disposed
of?

THE PRESIDENT ‑ It has not been and the question will
now be on the resolution as amended.

MR. O'NEAL ‑ Is that open to amendment now?

MR. HEFLIN ‑ I move that the substitute and the
amendment be referred to the Committee on Rules. That committee can make the
same investigation that a special committee could.

MR. GREER (Calhoun) ‑ I make the point of order that
the rules will have to be suspended before that can be done.

The point of order was overruled and a vote being taken the
motion to refer was lost by a vote of 38 ayes to 72 noes.

A further vote being taken the resolution as amended was
adopted.

MR. deGRAFFENREID ‑ I glow move that the rules be
suspended in order that the gentleman from Cullman and from Walker may offer
their resolutions.

MR. GREER (Calhoun) ‑ I withdraw my objections.

MR. SANDERS ‑ I object.

A vot being taken the motion to suspend was carried by 87 to
13.

The resolution No. 328 offered by Mr. Cofer was read as
follows: Be it resolved that from and after the present week the services of
five pages of the Convention be dispensed with and that the President be
directed to discharge five of the pages now in attendance upon the Convention
in order to save unnecessary expenses.

1983

CONSTITUTIONAL
CONVENTION, 1901

MR. COFER ‑ I move a suspension of the rules and that
that resolution be put upon its passage.

MR. LOWE ‑ I second the motion.

MR. PETTUS ‑ As a substitute I move that that
resolution be referred to the special committee to be appointed by the
President.

MR. HEFLIN (Chambers) ‑ Would a motion to table be in
order?

THE PRESIDENT ‑ A motion to table a motion to suspend
the rules would not be in order.

A vote being taken the House refused to suspend the rules to
immediately consider this resolution to the special committee to be appointed.

The resolution of the delegate from Walker was read as
follows:

Resolution No. 239, by Mr. Long of Walker:

Whereas, there is too much expense attached to the running
of the Convention, therefore, be it resolved, that a committee of five are
raised to say who are orators and who are not orators, and to allot to the
orators a time during which each day they and one ‑ half of the
stenographers may repair to the Senate Chamber and there let the orators
deliver themselves of their eloquence, and that the Convention proceed to work
during such time.

THE PRESIDENT ‑ That also will be referred to the
Committee of five on economics.

MR. BETHUNE ‑ I have a petition of a large number of
citizens which I ask unanimous consent to present and have read.

THE PRESIDENT ‑ The gentleman asks unanimous consent
and the Chair hears no objection and the Clerk will read the petition.

The petition was read as follows:

Petition No. 19, introduced by Mr. D. S. Bethune.

To the Constitutional Convention:

We, the undersigned, do most respectfully petition your
honorable body to pass an ordinance requiring the election of Railroad
Commissioners by the people, and that they be given more power, and be paid by
the State.

MR. MALONE ‑ I have a short petition, which I ask
unanimous consent to have read.

There being no objection, the petition was read its follows:

Dothan, Ala.,
July 5, 1901.

To Hons. M. Sollie, George H. Malone, T. M. Espy and H. J.
Reynolds:

As our delegates, we respectfully petition the Constitutional
Convention, through you, to provide in the new Constitution, for the election
of the Alabama Railroad Commission by the people direct, and for the payment of
their salaries by the State, and that their powers to enforce their rulings and
orders be increased.

MR. REESE ‑ I have about thirty ‑ five petitions
which I would like to have read.

1985

CONSTITUTIONAL
CONVENTION, 1901

To which objection was unmistakably manifested.

MR. SANDERS ‑ I call for the regular order of
business.

THE PRESIDENT ‑ The regular order will be the call of
the roll of the standing committees.

Upon the call of the roll the Committee on Impeachments
submitted the following report:

REPORT OF THE COMMITTEE ON IMPEACHMENTS

Mr. President:

The Committee on Impeachments instructs me to report the
Ordinance hereto appended, to take place of Article VII of the present
Constitution.

The material changes are as follows:

Section 1. The words "Lieutenant Governor, Commissioner
of Agriculture and Industries" are inserted. "Habitual
drunkenness" is omitted, and the following inserted in lieu thereof,
"or intemperance in the use of intoxicating liquors or narcotics to such
an extent, in view of the dignity of the office and importance of its duties, as
unfits the officer for the discharge of such duties."

Sec. 2. The word "sheriffs" is inserted.

Sec. 3. The word "sheriffs" is omitted: County
Superintendents of Education and County Solicitors inserted. The impeachment of
all officers of incorporated cities and towns is provided for.

Sec. 4. This is identical with Section 4 of the Article in
the present Constitution. In this connection, the committee reports favorably
Ordinance No. 404, offered by Mr. Coleman of Walker, providing for the
amendment of that part of Section 25, Article V, adopted by this Convention,
which is as follows:

Amend the Governor, when satisfied after hearing the
Sheriff, that he should be impeached, may suspend him from office until the
impeachinent proceedings are decided."

But two other ordinances have been referred to this
committee, which have been duly considered, and the principles contained in the
same incorporated in the Article, hence they are herewith returned to the
Convention.

O. R. Hood, Chairman.

AN ORDINANCE

Be it ordained by the people of Alabama, in convention
assembled, that Article VII of the Constitution lie stricken out, and the
following Article inserted in lieu thereof:

1986

OFFICIAL PROCEEDINGS

ARTICLE—.

Impeachments.

Section 1. The Governor, Lieutenant Governor, Secretary of
State, Auditor, Treasurer, Attorney General, Superintendent of Education,
Commissioner of Agriculture and Industries and Judges of the Supreme Court, may
be removed from office for willful neglect of duty, corruption in office,
incompetency, or intemperance in the use of intoxicating liquors or narcotics
to such an extent, in view of the dignity of the office and importance of its
duties, as unfits the officers for the discharge of such duties, or for any
offense involving moral turpitude while in office, or committed under color
thereof, or connected therewith, by the Senate sitting at a court for that
purpose, under oath or affirmation on Articles or other charges preferred by
the House of Representatives.

Sec. 2. The Chancellors, Judges of the Circuit Court, Judges
of the Probate Court, Sheriffs, Solicitors of the Circuits and Judges of the
Inferior courts, from which all appeal may be taken directly to the Supreme
Court, may be removed from office for any of the causes specified in the
preceding section, by the Supreme Court, under such regulations as may be
prescribed by law.

Sec. 3. The clerks of the Circuit, or courts of like
jurisdiction, of Criminal Courts, Tax Collectors, Tax Assessors, County
Treasurers, County Superintendents of Education, County Solicitors, Coroners,
Justices of the Peace, Notaries Public, Constables and all other county
officers. Mayors, Intendants, and all other officers of incorporated cities and
towns in this State, may be removed from office for any of the causes specified
in Section I of this Article, by the Circuit or other courts of like
jurisdiction, or criminal court of the county in which such officers hold their
office, under such regulations as may be prescribed by law. Provided, that the
right of trial by jury and appeal in such cases be secured.

Sec. 4. The penalties in cases arising under the three
preceding sections shall not extend beyond removal from office, and
disqualifications from holding office, under the authority of this State, for
the terms for which he has elected or appointed; but the accused shall be
liable to indictment and punishment as prescribed by law.

MINORITY REPORT.

Mr. President:

The undersigned, members of the Committee on Impeachments,
do not concur in the report of the majority as to Sections 1, 2 and 3, and in
lieu thereof, we recommend the following:

1987

CONSTITUTIONAL
CONVENTION, 1901

Section 1. The Governor, Lieutenant Governor, Secretary of
State, Treasurer, Auditor, Attorney General, Superintendent of Education,
Commissioners of Agriculture and Industries, and Judges of the Supreme Court,
may be removed from office for wilful neglect of duty, corruption in office,
habitual drunkenness, incompetency, or any offense involving moral turpitude
while in office, or committed under color thereof, or connected therewith, by
the Senate, sitting as a court for that purpose, under oath or affirmation, on
Articles or charges preferred by the House of Representatives.

Sec. 2. The Chancellors, Judges of the Circuit Courts,
Solicitors, and Judges of the Inferior Courts, from which an appeal may be
taken directly to the Supreme Court, may be removed from office for any of the
causes specified in the preceding section, by the Supreme Court, under such
regulations as may be prescribed by law.

Sec. 3. The Sheriffs, Clerks of the Circuit or other courts
of like jurisdiction. of criminal courts, Tax Collectors, Tax Assessors, County
Treasurers, County Superintendents of Education, County Solicitors, Coroners,
Justices of the Peace, Notaries Public, Constables and all other county
officers, Mayors, Intendents of incorporated cities and towns in this State,
may be removed from office for any of the causes specified in Section 1 of this
Article, by the Circuit or other Courts of like jurisdiction, or Criminal
Courts of the county in which said officers hold their office, under such
regulations as may be prescribed by law; provided. that the right of trial by
jury and appeal in such cases be secured.

We are aware that the change as made by the majority in
Section 1 was done to try to remedy the defect as shown by the opinion of the
Supreme Court in the Robinson cases. We are unable to see how the change
remedies the difficulty, and, therefore, recommend the adoption of the section
as found in the Constitution of 1875, with the addition of Lieutenant Governor
and Commissioner of Agriculture and Industries.

As to Sections 2 and 3, the minority dissent from the action
of the majority in transposing the word "Sheriffs" from Section 3 to
Section 2, and the Section as recommended by the minority is the same as in
your Constitution.

The effect of the adoption of the majority report will be to
take the impeachment of the Sheriffs out of the hands of the local community
which elected them, and place it in the Supreme Court, and it will be observed,
that this is not limited to cases arising from negligence in allowing a
prisoner to be lynched, but for any cause whatever, which we insist is not
demanded by any condition that has ever existed in our State, or which is at
all likely to ever occur. and therefore, we submit that the provisions of the
Constitution of 1875 should not be changed.

1988

OFFICIAL PROCEEDINGS J. F. Thompon, J. J. Robinson.

MR. HOOD ‑ I ask for the reacting of the ordinance No.
404 accompanying the report.

The ordinance was read as follows:

Ordinance No.404, by Mr. Coleman (Walker):

Whereas, ample provision is made by law for the impeachment
of officer, and whereas. it is contrary to the policy of this government that
any part of the powers of our department should be exercised by am officer of
another department, and whereas, it is contrary to the spirit of our
institutions that any person should be punished before trial.

Now, therefore, be it ordained by the people of Alabama in
Convention assembled, That the following part of Section 29 of Article V,
adopted by this Convention be and the same is hereby annulled to wit: “And the
Governor, when satisfied after hearing the Sheriff, that he should he impeached,
may suspend him from office until the impeachment proceedings are
decided."

MR. HOOD ‑ I now move that the ordinance and report of
the Committee be printed and lie upon the table and be considered in the order
of its being reported.

The motion was carried.

THE PRESIDENT – The regular order will be the consideration
of the report of the Committee on Local Legislation.

MR. DENT ‑ I have an amendment to Section 4, which was
under discussion when we adjourned, and I send it up.

MR. O'NEAL ‑ I rise to make an inquiry. Do we take up
where we stopped on yesterday, or do we take up the first motion to reconsider.

THE PRESIDENT ‑ It seems to the Chair that when the
Convention reconsiders the start that has been acted upon, we will properly go
back. A part of subdivision twenty ‑ six was transposed to the end of the
section. That was withdrawn by the Committee, and added at the end of the
Section, to which there were one or two amendments offered.

MR. WATTS ‑ The Chair is a little in error. Mr. Jones
of Hale. moved to reconsider subdivision 23, which was granted by the
Convention, and it seems to me that we ought to dispose of his subdivision 23,
before we go to 26.

THE PRESIDENT ‑ The Chair did not intend to take it up
in any other order, but the Chair was trying to correct a misap‑

1989

CONSTITUTIONAL
CONVENTION, 1901

prehension in reference to subdivision 26. The Chair
understands that that part of subdivision 26 was withdrawn, and added at the
end of section 1. Is the Chair correct about that?

MR. O'NEAL ‑ The Chair is correct.

THE PRESIDENT ‑ The question will be on the adoption
of amendment of subdivision 23.

MR. JONES (Hale) ‑ I have a substitute, which has been
accepted by the committee.

The substitute was read as follows: "Increasing the jurisdiction
and fees of justices of the peace or the fees of constables."

MR. JONES (Hale) ‑ I move the adoption of the
amendment.

MR. WATTS ‑ As an amendment to that, I move that
Subdivision 23 be amended simply by striking out the words "jurisdiction
or."

THE PRESIDENT ‑ The gentleman will have to put his
amendment in writing.

MR. O'NEAL ‑ That will destroy the meaning of it.

MR. SANDERS ‑ I call for the previous question on the
substitute offered by the gentleman from Hale.

The main question was ordered, upon the substitute and the
subdivision, and upon a further vote being taken, the substitute was adopted.
Upon a further vote the subdivision as amended was adopted.

THE PRESIDENT ‑ The question is on Subdivision 33.

MR. WATTS ‑ The question now up is what the Convention
persists in calling Section 26. It is the last part of Section 1.

MR. DENT ‑ Is the section that was reconsidered now
under consideration?

MR. O'NEAL ‑ It commences after Subdivision 26 in the
report—

MR. DENT ‑ Beginning "no special law? "

THE PRESIDENT ‑ To what purpose does the gentleman
from Barbour rise?

MR. DENT ‑ I rise for the purpose of making a motion.
I want to preface it with some remarks, if this matter is up for consideration.

THE PRESIDENT ‑ To what does the motion relate?

1990

OFFICIAL PROCEEDINGS

MR. DENT ‑ It relates to this part of Section 33, I
believe you call it.

THE PRESIDENT ‑ The Convention did not reconsider
Section 33.

MR. DENT ‑ That part of Section 26 which was
reconsidered beginning with the words "No special law and ending with the
word "general law."

THE PRESIDENT ‑ There are some pending questions in
reference to that, and the Chair will have to state them to the Convention. The
gentleman from Limestone moved to amend the last paragraph. The Secretary will
read the paragraph and pending amendments.

The subdivision was read.

THE PRESIDENT– There is a point of order made by the
gentleman from Chambers, which will have to be ruled on.

MR. HARRISON ‑ I rise to it parliamentary inquiry.

THE PRESIDENT ‑ The gentleman will state the question
of inquiry.

MR. HARRISON ‑ The amendment was offered, immediately
after the motion to reconsider. Soon after I took the floor, and the question
was raised that it was all out of order, and I had to yield the floor under
that ruling and I submit that if it was all out of order these amendments are
not properly before the Convention.

MR. WILSON (Clarke)– A point of order. The Convention
received the amendments.

THE PRESIDENT ‑ It seems to the Chair that the point
of order is well taken, that the amendments were not in order at the time.

MR. SANDERS ‑ I now offer the amendment I offered.

MR. WILSON (Clarke) ‑ I offer the amendment to the
amendment offered by the gentleman from Limestone.

MR. HARRISON ‑ I rise to it point of order. The
delegate from Barbour had the floor, and was in reality not out of order on the
proposition on which the Chair now changes its ruling, and he is entitled to
the floor and not the gentlemen offering the amendments.

MR. DENT ‑ If I had the floor I would like to hold it,
if I am entitled to it. Will the Chair bear with me a moment. I took my seat in
order that the Chair might decide the point of order raised as I believed by
the gentleman from Chambers, and for that

1991

CONSTITUTIONAL
CONVENTION, 1901

purpose only, as I understood it, and I have not heard any
ruling from the Chair upon the point of order.

THE PRESIDENT ‑ The point of order related to these
amendments, against which a point of order was made that they were not offered
at the proper time.

MR. DENT ‑ Then they are not before the Convention.

THE PRESIDENT ‑ They were not properly before the
Convention, but after the Chair ruled on that point of order, there was no
gentleman who had the floor, thereupon the gentleman from Limestone rose, and
he was recognized for the purpose of offering his amendment, and thereupon the
gentleman from Clarke arose, and gained recognition for the purpose of offering
his amendment to the amendment. The Chair will recognize the gentleman from
Barbour to present any motion which he thinks will facilitate the Convention.

MR. DENT ‑ I move to table the whole matter, the
pending subdivision and all the amendments.

MR. ESPY ‑ Wasn't that same proposition voted on by
this Convention on yesterday, and voted down?

THE PRESIDENT ‑ No, the proposition in its present
shape was not voted down, because the amendment offered by the gentleman from
Limestone was not then considered in its present connection.

MR. O'NEAL ‑ I will ask for a division of the
question.

THE PRESIDENT ‑ The Chair will state that the point of
order made now by the gentleman from Henry involves to some extent the same
point of order made by the gentleman from Chambers, although the question is in
a little different shape. One authority says "an amendment may be in any
of the following forms, to add or insert certain words or paragraphs, to strike
out certain words or paragraphs, and if this fails. it does not preclude any
other amendments, than the identical one rejected. To strike out certain words
and insert others, which motion is indivisible, if lost, does not preclude
another motion to strike out the same words and insert different ones, or to
substitute another resolution or paragraph on the same subject for the one
pending."

Another authority says "where two propositions have
been voted upon separately, an amendment embodying the two presents a different
question." The two propositions were considered separately and the two
propositions are both combined in the present and it is a different question
and therefore the Chair will overrule the point of order.

MR. O'NEAL ‑ I call for a division of the question,
and I call for an aye and no vote upon the question.

1992

OFFICIAL PROCEEDINGS

The call for the ayes and noes was not sustained.

MR. SANDERS ‑ I move that this Convention remain in
session for five minutes, until this pending question is disposed of.

Upon a vote being taken the Convention refused to suspend
the rules.

The chairman of the Democratic caucus made a statement to the Convention, and the Convention adjourned.

________________

AFTERNOON SESSION

The Convention was called to order by the President, and
upon a roll call it shoved that there were 119 delegates present.

Indefinite leave of absence was granted to Mr. Spear of St.
Clair, on account of sickness.

THE PRESIDENT – When the Convention adjourned, we had under
consideration the report of the Committee on Local Legislation.

MR. REESE ‑ In the proceedings of this Convention of
day before yesterday, there was an omission in part of the proceedings. The
gentleman from Macon, in addressing an interrogatory to the Chairman of the
Committee at the conclusion of it said, “Now, bold Saxon, hold thine own.” It does not appear in the proceedings.

MR. COBB ‑ I deny the soft impeachment.

MR. HEFLIN (Randolph) ‑ 1 desire to ask unanimous
consent to make a report from the Committee on Schedule, Printing and
Incidental Expenses.

Objection was made.

THE PRESIDENT ‑ The question is on the consideration
of the report of the Committee on Local Legislation. The Convention had under consideration the last paragraph of that
report. There was pending an amendment to amend a motion by the gentleman from
Barbour to lay on the table.

MR. DENT ‑ I desire to withdraw the motion to table.

There being no objection, the motion was withdrawn.

MR. WATTS ‑ I move to table the amendment of the
gentleman from Clarke.

MR. PRESIDENT ‑ The Chair recognized the gentleman
from Montgomery (Mr. Jones.)

MR. O'NEAL ‑ We withdraw that motion.

1993

CONSTITUTIONAL
CONVENTION, 1901

MR. WATTS ‑ I beg pardon, I understood the Chair to
recognize me.

MR. JONES ‑ If it were not that this matter is fraught
with so much vital import to the whole work of the Convention concerning local
legislation, I should be content to simply vote. I beg the gentlemen who are
opposing this provision to remember that under the old law, the uncertainty,
which was spoken of, grew out of the language in the Constitution when it said
there should not be any local law in a case which can be provided for by a
general law.

MR. PITTS ‑ Was not the pending question when the
House adjourned the motion of the gentleman from Barbour to table the entire Section?

THE PRESIDENT ‑ That has been withdrawn.

MR. JONES ‑ Mr. President, I was proceeding to say
that the language of the present amendment takes away, in a large measure, the
uncertainty and deplorable circumstances to which the gentlemen refer arising
under a ruling that the courts could judge under the present Section of the
Constitution. It might take a very wise man in fact to say, under the present
Constitution, what can be provided for by general legislation. Most anything
could be provided for by general legislation if skilled ingenuity were
employed. It might require numerous statutes and they might be very voluminous
in detail, but still you could not say a thing could not be provided for by
general legislation. Now the Committee has provided that it is not the things
that can be provided for by general legislation, but things that are. So that
all a man has to do is to look at the statute and he can determine with
reasonable certainty, because nothing is absolutely certain in a law when it is
a question of construction.

Another objection has been urged that this is something new,
that it is putting the courts to invade the legislative province. I want to ask
my friends here who have made that objection if there is really anything in
it? Isn't the Legislature bound in any
event when the matter comes before it, to determine whether it is
constitutional or not? Certainly it is. It is one of the greatest co ‑
ordinate departments of the Government and the courts attach so much importance
to its judgment in a matter of that sort that they say when the Legislature has
acted and thereby determined that it was a lower or that a certain act is
constitutional, that the courts will not interfere sinless clearly convinced
that the Legislature is in error. There is nothing new then in saving that the
courts and not the Legislature shall be the final judge in this matter. It is
no invasion of the province of the Legislature. It is simply our old ancient
way of doing, and one of the glories of a written Constitution, is that there
is always some tribunal that

1994

OFFICIAL PROCEEDINGS

has the power to determine in a case of last resort, whether
a Constitution has been violated or not. You make an exception to the spirit of
our institution when you say that it is an invasion of the province of the
Legislature to say that the courts shall be the final arbiters to determine
whether the Constitution has been violated or not.

MR. CUNNINGHAM – Will the gentleman permit a question?

MR. JONES ‑ Yes, sir.

MR. CUNNINGHAM – Are not the courts the final arbiters
without this provision of the Constitution?

MR. JONES – No sir; because our Supreme Court has said that
the language put down there may be purely a matter of legislative discretion
with which the courts will not interfere.
Just for instance, the Constitution says, a bill shall be read at length
three several days. The courts cannot
inquire into that. They cannot
supervise it if the Legislature says in its journal that it has been read three
several days. That is the language of
it.

MR. CUNNINGHAM– The question whether an act is local or
general in its nature would not be passed upon by the courts unless there is a
special provision requiring them to do so.

MR. JONES – Under the decision of Jack et als. Vs. DeVinney,
and several other cases, I think not and this is the reason we make this appeal
to our friends who do not seem to really take in the full scope of this
section. The gentleman from Greene, who
was a Judge of the Supreme Court, thinks it would. I for one do not. But there are some other able lawyers on this
floor, and the gentleman from Greene is one of them, who are of the opinion
that if those things are stricken out, especially in view of a decision of the
Supreme Court on a like provision of the Constitution, it may mean the death
knell to the whole section. It may be,
but, mind you, I don’t say that is my opinion, because it is not but there are
other gentlemen whose opinion I do refer to, think that it may sound the death
knell of this whole Article on Local Legislation if we put in here language
which the Supreme Court says means that the Legislature alone should not have
any voice in it. It seems to me that we ought to proceed with great caution.

MR. SMITH (Mobile) ‑ I want to ask the gentleman from
Montgomery if the argument he is making is in accord with his opinion.

MR. JONES ‑ The gentleman did not hear me. I said day
before yesterday, and I said a moment ago, that was not my personal opinion.

MR. SMITH ‑ I did not hear you say that.

1995

CONSTITUTIONAL
CONVENTION, 1901

MR. JONES ‑ But take the gentleman from Greene, who
has long been an honored Judge on the bench; he thinks differently, and we may
be in the attitude of the eminent Francis S. Lyon, a man of eminent intellect
and fine, broad, common sense, and in the Convention of 1875, they thought they
had provided against the evils with which we had struggled for a quarter of a
century in that Constitution and they congratulated the people of Alabama that
they had delivered them from these evils; but it was not five years before a
case castle up that knocked down the whole provision and made it as so much
waste paper.

MR. MACDONALD ‑ May I ask the gentleman a question?
Suppose a local law should provide a certain method by which rights might be
obtained and a person should follow such methods and obtain rights; suppose the
courts should afterwards decide that a general law existed under which such
rights might have been obtained by different methods, what position would such
person be in?

MR. JONES– We would be in the fix of any other man who acted
on an unconstitutional law.

MR. MACDONALD– Suppose the law was apparently constitutional
?

MR. JONES ‑ Every law is apparently constitutional.

MR. MACDONALD– Would a man be helped by the general law?

MR. JONES ‑ I don't think he would, because he would
be getting his rights under a void statute in violation of the Constitution.

MR. MACDONALD ‑ Void, not voidable.

MR. JONES ‑ No, sir; any, law declared void is as
though it had never been enacted. That is the language of the decision.

Now, there is another thing which I hope our friend will
bear in mind, there cannot be very much of this legislation. It is not one time
in a thousand that any title would depend upon some local act that is passed.
There are always hard cases in which an innocent man is hurt by law, but if we
once get our people out of the rut of favoritism in local legislative matters,
that can be attended to by general legislation, the good that will result will
more than compensate for the hardship in any particular case. There is not a
case where a legislator is compelled to draw a law that he does not stop to
think and have to consider, does this thing violate the Bill of Rights?
Sometimes questions come up whether the statute infringes upon the right of
life, or liberty in the pursuit of happiness. You have not to take the risk. If
you go into a battle, you may be shot. You must do the best you can. There is

1996

OFFICIAL PROCEEDINGS

no provision in our government by which you can get in
advance a decision of the Supreme Court as to whether a law is constitutional
or unconstitutional until some like case has come into court and been declared
constitutional or unconstitutional.

MR. WALKER– This matter as been discussed before the
Convention a good deal, and by reason of some interests being developed on the
one side or the other, it seems to me that the Convention has to a great extent
lost sight of the meaning of a very simple provision that is before it and have
interpreted it as going out further than the provision can possibly be
interpreted when you examine the language.
Now, what is the proposed provision about which all this discussion is
taking place? It is simply this: That no special, private or local law except a
law fixing the time for holding courts shall be enacted in any case which is
provided for by a general law, or when the relief sought can be given by any
court of this State. Now, gentleman of
the Convention, don’t you all agree that if a man already has under the general
law a thing which he wants or if under a general law already existing, he can
get the relief he desires by going to the court, don’t you think under those
circumstances he ought not to be allowed to go to the Legislature? And, as a special privilege, or benefit to
him get something that is not open to the remainder of the people? Is there any hardship in that. If a general law already gives the right,
why in the world should the Legislature be bothered with giving that right over
again? If, under the general law
already existing, the relief that is desired can be obtained in the courts
which are open to all men, ought one man as a favor to be conferred upon him by
the member from his county to get that relief when everybody else who cannot
get these favors must go before the courts and get it in the way the general
law prescribes? Now, gentlemen, don’t
all the members of this Convention concede that the applications to the
Legislature for things of that kind that have already been provided for fully
and completely under laws already in existence should not consume uselessly the
time of the Legislature. If the thing
is already provide for by a general law, or if the relief desired can readily
be obtained by going into the courts of the country, what necessity can any one
say exists for the passage of a special or local law under those
circumstances? I conceive none in the
world. Now, what has been the practice?
The practice has been that with reference to matters as to which we have ample
and complete general laws, appli cation has been made to the Legislature time
and time again to get relief as a matter of special favor simply to relieve
persons in that situation from going into the courts and proceeding to secure
the remedies they desire in the mode that other people have to pursue in order
to secure that kind of relief. It is a
kind of special favoritism that I do not believe any gentleman in this
Convention, when he stops to consider the matter, is in favor of continuing or

1997

CONSTITUTIONAL
CONVENTION, 1901

perpetuating. Well, now, the Constitution of 1875 passed a
provision and congratulated itself upon the fact that it had put in the
fundamental law a provision of this kind of favoritism. Read the address that
was made by some of the able men in that Convention in which they congratulated
the people of Alabama that by this provision on that subject they had stopped
that kind of favoritism by special acts of the Legislature and had put the citizens
of the State generally upon the same footing. But how were their expectation;
disappoint and defeated ? By the circumstance that under the provision which
that Convention made and congratulated itself upon, it turned out that the
provision was faulty because the determination of the question as to whether or
not the relief could be obtained under the law as it existed or under general
legislation was left entirely with the Legislature and that the courts could
not determine it. Now is there any hardship saying to any man, any individual,
corporation or association that if the laws of the State have already provided
for your case and you can get everything you could possibly get by appealing to
the legislature, you ought not to consume the public time in trying to get the
legislature to do what has already been done for you. That is all this
provision means.

MR. BETHUNE ‑ Suppose the legislature, after this
Constitution has been made and adopted by the people, suppose the legislature
meets and passes a general law forbidding the organizing or establishing of any
more dispensaries in this State and a town or city desires one, how would the
town or city obtain one if that section is adopted?

MR. WALKER ‑ I really don't understand the purport of
the question.

MR. BETHUNE ‑ Suppose the legislature, after this
Constitutional Convention adjourns and the Constitution is submitted to the
people and adopted, meets and passes a general law forbidding the organizing or
establishing of any more dispensaries in this State, and suppose a town or a
city desires to establish one, how would such city or town obtain one if this
section were adopted.

MR. WALKER ‑ That would be just the reverse of the
situation. In that case there would be no general law under which the relief
could be obtained and this is not a prohibition upon a town or city in that
kind of a case. It prohibits local or special laws only in the classes of cases
in which the relief desired could not be obtained. That is the kind of cases.

MR. ROBINSON ‑ I ask the gentleman suppose the
legislature were to pass a general law allowing a county to issue bonds for the
purpose of building a court house and prescribe the rate of interest at 6 per
cent and the county could not float its bonds

1998

OFFICIAL PROCEEDINGS

at 6 per cent but could only float them at 1 per cent and
the legislature were to pass a special law allowing them to issue bonds just as
in a general law and provide a rate of 7 per cent, how would the courts decide
that question?

MR. WALKER ‑ I am not able to say, but that would not
be governed by the provisions contained in this section. This section prohibits
a special law only in cases already provided for by a general law.

MR. ROBINSON ‑ Suppose there is a general law
providing for the issuance of bonds to build a court house and providing the
rate of interest of 6 per cent and this county cannot float the bonds at 6
percent, could they pass a special law for the issuance of bonds at 7 per cent.
would that be held to be in conflict with the general law?

MR. WALKER ‑ I am not able to answer your question.

MR. ROBINSON ‑ Wouldn't it be better to leave that
matter of whether that could be provided for by a general law to the
legislature and not for the court because one is acting at the time they pass
the law and the other is called on to act afterwards when substantial rights of
individuals are affected by it?

MR. WALKER ‑ I think not. The only question is, all
these cases imply that one body or another should be required to answer this
question, either the legislature or the court. You cannot in fairness say after
the experience we have already had that leaving the provision as it is under
the Constitution of 1875, the legislature will really ask itself the question.
Nobody will pretend to say that in reference to these matter; of local and
special legislation that have been adopted in Alabama that the legislature has
ever paused for a moment to inquire whether those cases are such as could be
provided for by general law.

MR. MALONE ‑ Section 3 which has already been adopted
makes provision for the repeal of any local law. Now, if some adverse
legislature were to repeal for instance the laws on the dispensary question,
which were passed for the purpose of meeting the wants of a certain locality,
could they ever get it hack except under general laws?

MR. WALKER ‑ It could readily be provided for under
general laws by which a community could get their own desires in that regard.

MR. MALONE ‑ When you are out you can't get back any
more?

MR. WALKER ‑ Not under the local law. The fears of the
gentlemen who have the dispensaries in their minds throughout the discussion of
the matter have made the gentleman lose sight of

1999

CONSTITUTIONAL
CONVENTION, 1901

the purport of the provision. I think it is obviated by the
provision that that matter should be excluded and that it should be left the
subject of local and special legislation. I thought everybody was satisfied
that it was disposed of in that way.

MR. WATTS ‑ I move to table the amendment offered by
the delegate from Clarke.

The motion was withdrawn at the request of the delegate from
Lee.

MR. HARRISON ‑ I dislike to discuss any question that
has been already discussed so extensively. I was perfectly willing when the
motion was made to lay on the table,
but that motion was withdrawn and argument
in favor of this subdivision has been gone into quite extensively. I
have listened attentively and have tried to ascertain the views of the
Convention and after listening to those views I see no use whatever for this
subdivision as reported by the Committee. I agree with the distinguished
gentleman from Madison that so far as the part of the section read by him there
can be no opportunity for harm in it; but I cannot see any use of it. To the
other part which the motion of the delegate from Clarke seeks to strike out. I
do see great objection. I appreciate all that has been said about the effect of
the ruling of the Supreme Court on that subdivision as it practically stood in
the old Constitution, but when these two Committees with great diligence have
not only included everything they could think of, but have examined every
Constitution in the land and have given us positive inhibitions against thirty ‑
five classes of special and local legislation, I cannot see any need for this
blanket clause.

MR. WALKER ‑ If the gentleman will permit me a
question, I am satisfied you and I are after the same object. We want to stop
local and special legislation.

MR. HARRISON ‑ I do.

MR. WALKER ‑ In reference to matters already provided
for by general law or in reference to relief that can already be obtained from
a court. Now that is the object sought for here and if you can advise a method
to secure it, I shall be glad to support the proposition.

MR. HARRISON ‑ I think these two committees have
devised the best plan known to anybody and that is to make a fair positive,
clear provision and name the subjects upon which they cannot pass local and
special legislation.

MR. O'NEAL ‑ Will the gentleman allow me to interrupt
him?

MR. HARRISON ‑ I will, but my time is very limited.

2000

OFFICIAL PROCEEDINGS

MR. O'NEAL ‑ I will move to extend your time.

MR. HARRISON ‑ It may not be granted.

THE PRESIDENT ‑ The chair is not looking favorably this
afternoon on motions to extend time.

MR. O'NEAL ‑ The General Assembly shall pass general
laws for the cases enumerated in this subdivision. Do you want to strike that
out?

MR. HARRISON ‑ No, I would leave that there. I think
the English would be better to leave that and strike out the other, but I don't
see how that applies to the question we are discussing.

MR. O'NEAL ‑ Well, let me call your attention to this
provision, "Nor shall the General Assembly enact any, such special,
private or local law by the partial repeal of a general law." What
objection have you to that?

MR. HARRISON ‑ I have no objection to that, but you
have crowded so much in there that I object to that I would be willing to lose
the good things in it to get rid of all the rest, and I don't see how that last
mandate can he carried out.

As I understand it, this is largely a copy of the present
Constitution, only that the one we are living under now leaves it to the courts
and not the Legislature to determine as to this matter, and with that out, I do
not see that any harm would be done, but I see no good in this section when the
whole field have been covered by special prohibitions eliminating from
legislative action the subjects named, and my distinguished friend from
Montgomery, although he quoted the delegate from Greene as expressing a doubt,
I doubt whether the delegate from Greene can entertain that doubt after
carefully reading this, and I was pleased that the delegate from Montgomery
himself had no doubt about it, for he answered the delegate from Mobile that he
did not so contrue it. Now, there is no lawyer on this floor who will contend
that this subdivision will have any effect whatever with these thirty ‑
five subdivisions in there.

MR. ROBINSON ‑ May I ask the gentleman a
question? Is there anything in these
thirty ‑ five subdivisions to prevent holding all ‑ day singing:

MR. HARRISON ‑ No, sir; nor prayer meetings, either.

MR. ROBINSON ‑ Is there anything to prevent foot log
crossings ?

MR. HARRISON ‑ No, sir.

MR. ROBINSON ‑ Is there anything to prevent throwing
rocks out of the road?

2001

CONSTITUTIONAL
CONVENTION, 1901

MR. HARRISON ‑ No, sir.

MR. ROBINSON ‑ There have been special laws passed on
all those subjects by the Legislature.

MR. HARRISON ‑ Then I suppose the things that brought
about the passage of such laws were happening in Chambers and not in Lee.

Now, I call the attention of the Convention to the fact that
the gentleman from Madison could not answer the question propounded by the
gentleman form Chambers, and that is a sufficient reason for stating that it
could not be answered and that is reason, if nothing else, why this clause
should be stricken out.

MR. ROBINSON ‑ I would ask, then, that it be left to
the Legislature to decide it.

MR. HARRISON ‑ I don't think we should adopt this. I
have entertained a view that seem to have actuated the committees. I have
always favored carrying into effect the provisions of the old Constitution, and
if there was no other way, I perhaps would vote for this one, but I doubt the
propriety of allowing this matter to go into the hands of the court, because I
really believe if this provision is adopted it will tend to produce more
litigation than any matter that has been before this Convention. The effect of this
would be that one ‑ half of the local laws passed on any subject would go
into the hands of the court. It would be a fine harvest for my profession, but
as a member of this Convention, and as a legislator, I would feel that I was
neglecting my duty if I did not raise my voice against this. It will be a
question on one side or the other of every measure as to whether it has been
provided for by general legislation, and I think it would be better to risk the
Legislature to determine the matter under the positive mandates here than to be
inter ‑ weaving the different duties that the several departments of our
government should perform. This will not only create confusion, but will cover
the State with litigation. I would be loath to support this matter anyhow, but
when the committees have, after examining all the constitutions, and when we
have, as one of the committees informed me last night, one more of these
sections than any State in the Union, positively prohibiting the Legislature,
who do you want to go further? Therefore, conformable to the request of the
gentleman, I renew his motion to table the substitute, and to table the whole
thing.

MR. O'NEAL ‑ I ask for a division of that.

MR. HEFLIN (Randolph) ‑ The other day, when I was
making the first speech I have made during the Convention, and my time expired,
some gentleman was kind enough to move that my time be extended, and the
gentleman from Lee suggested that I have leave to print. Being loath to believe
that the gentleman

2002

OFFICIAL PROCEEDINGS

intended any unkind cut, and, being desirous to some extent
of showing the milk of human kindness, and out of great respect for the age and
ability of the distinguished gentleman from Lee, I move that his time lie
extended.

MR. HARRISON– I thank my friend from Randolph and the
Convention, but I have been in favor of short speeches and the saving of the
public time, and I beg respectfully to decline further time; but I also wish to
say to my friend that I am sorry if he took any offense at my remarks, which
were not intended in any such light, but he did have such a pretty speech, and
I thought thoroughly prepared, that I wanted to read it in writing.

MR. WATTS ‑ I call for the ayes and noes.

MR. REESE ‑ Has a Convention a right, when a motion is
made to table a section and all amendments with a view of getting rid of the
entire subject, to call for a division on the various amendments?

THE PRESIDENT– In answer to the inquiry, the chair will
state that it is perfectly competent for the Convention to table a section and
all amendments, but as a matter of right, delegates can demand a division. The rule laid down by Cushing is that the
motion to table will apply to the propositions in their regular order. A division under our rules is a matter of
right, and when a delegate demands a division of a motion to table a section
and pending amendments, the motion will be taken on each proposition
successively. The question is on the
motion of the delegate from Clarke, and the ayes and noes have been demanded by
the delegate from Montgomery (Mr. Watts).
Is the call sustained?

The call was not sustained.

A vote being taken, the amendment of the delegate from
Clarke was tabled.

A further vote being taken, the House refused to table the
amendment of the delegate from Limestone.

THE PRESIDENT ‑ The question is now on the motion to
table the Section.

MR. WATTS ‑ Don't we pass on this amendment before we
pass on any further. The Convention has refused to table this amendment. Now
don't we take up this amendment and dispose of it ?

THE PRESIDENT ‑ The motion to table has been made and
it is the duty of the Chair to submit the motions to table in successive order.

MR. ASHCRAFT ‑ Notwithstanding we have refused to
table this amendment, are we still called upon to say whether we will table the
original proposition without the amendment?

2003

CONSTITUTIONAL
CONVENTION, 1901

THE PRESIDENT ‑ That is the proposition. The
Convention don't have to table this proposition. That is for the Convention,
not the Chair, to say.

MR. ASHCRAFT ‑ One more question. Suppose the original
proposition is tabled, what do we do with this amendment which we have refused
to table?

THE PRESIDENT ‑ That is for the Convention to say.

MR. O'NEAL ‑ If the Convention refines to table the
origitial Section thr question recurs on the adoption of the amendment ?

THE PRESIDENT ‑ Certainly. The Chair will state that
the peculiar condition that will be produced as suggested by the gentleman
front Lauderdale might be a reason why the Convention should decline to table
this proposition, but it is not a reason why they have not the right to
amendment. In many cases amendments are tacked on to a proposition to kill it
but the Convention, if it desires, can fasten on to a proposition any amendment.

A vote being taken on a division, by 50 ayes and 75 noes the
House refused to table the Section.

MR. O'NEAL ‑ I now move the adoption of the amendment
of the delegate from Limestone and on that I move the previous question and
also move the previous question on the Section, but if the gentleman desires to
offer an amendment, I will withdraw it.

MR. ROBINSON ‑ I have an amendment I would like to
offer.

MR. O'NEAL ‑ Then I withdraw the motion for the
previous question as to the Section.

A vote being taken the main question was ordered on the
amendment of the delegate from Limestone, and a further vote being taken the
amendment was adopted.

MR. ROBINSON ‑ I offer an amendment.

The amendment of the delegate from Chambers was read as
follows:

Amend by striking out after the word State in the
thirtyfifth line down to and including the word "court" in the
thirtyseventh line, and insert, "Unless every such special, private or
local law shall contain a recital that notice has been given as provided by
Section 2 of this Article and that the matter of such special, private or local
law cannot be provided for by general law, and that the relief sought therein
cannot be given by any court."

2004

OFFICIAL PROCEEDINGS

MR. O'NEAL— I rise to a point of order. The Convention has
already refused to strike out that very part.

MR. ROBINSON ‑ This is not a motion to strike out
simply, it is a motion to strike out and insert.

MR. O'NEAL ‑ The gentleman froth Clarke moved to
strike out this same language.

MR. ROBINSON ‑ But I move to strike out and insert.

MR. O'NEAL ‑ If a gentleman moved to strike out a
certain part of a Section and the Convention votes it down, can some other
gentleman then move to strike out that same part and insert something else? If
he can, it seems to the there would be no end.

THE PRESIDENT ‑ It seems to the Chair that the present
amendment is in order. The proposition is somewhat changed.

MR. ROBINSON ‑ I shall detain the Convention only a
minute to explain that provision. It is simply to strike out the power of the
court to pass on this question, which, under this Section as it stands, may be
done next week or two years or twenty years, and allow the Legislature to put
in the recitals of the bill and determine then and there which must be carried
into the act itself, and also that the act must contain the statement that the
notice has been given and that the matter is not provided for by general law
and that the relief sought cannot be obtained from any court. That is a simple matter.
It allows the same tribunal that is enacting the law to determine the question
whether the notice is given and whether the relief sought can be obtained under
any general law or through any court. This amendment provides that the General
Assembly when it passes any law must put into that law itself and thereby
determine the question that notice has been given, that the relief cannot be
obtained under a general law, or through any court. That is all there is in my
amendment. This matter ought to be determined by some tribunal at the time the
bill is passed, and not let it go on for years until valuable rights have been
acquired under it before the matter is determined. I cited an instance to the
distinguished gentleman from Madison where the court would hold that the law I
mentioned to him was provided by general law because there would be no evidence
to show why 7 per cent. interest was carried into it instead of 6 per cent.
already provided by the general law. People ought to be protected in that. Suppose
a Court House were burned and under a general law they could not float bonds at
6 per cent. and a special law is passed and the bonds sold and the Court House
built and then a year or two afterwards some tax payer comes up before the
court and says this law is unconstitutional. We have the Court House and we
won't pay the bonds.

2005

CONSTITUTIONAL
CONVENTION, 1901

There have been a number of instances of that kind and it
does seem to me that right in the legislative act is the place for this question
to be determined, and when they carry it into the law they are bound by it and
there can be no chance for them to say, we did not understand this question.

MR. JONES (Montgomery) ‑ My distinguished friend from
Chambers has brought the same man back here only in a different uniform, and I
move the previous question on the Section and the amendment.

MR. REESE– I will ask the gentleman to let me offer an
amendment which does not relate to this amendment.

The motion for the previous question was withdrawn
temporarily, and the amendment by the gentleman from Dallas was read as
follows:

Amend last paragraph of Section I by striking out the word
"fixing" in line 33 and insert in lieu thereof the words
"regulating the creation, practice, or."

MR. JONES ‑‑ I now move the previous question on
the amendment.

On a vote the main question was ordered.

MR. WILSON (Clarke) ‑ Is that an amendment to the
amendment proposed by the gentleman front Chambers?

THE PRESIDENT ‑ It is. The gentleman from Chambers
offers an amendment to the paragraph as reported by the committee and the
gentleman from Dallas offers all amendment to that amendment.

MR. PROCTOR ‑ It seems to me the amendment offered by
the gentleman from Dallas is to insert in the original section and the
gentleman from Chambers desires to strike out the very part the gentleman from
Dallas desires to amend.

MR. ROBINSON ‑ The amendment of the delegate from
Dallas is not in the words I strike out.

MR. REESE ‑ I ask unanimous consent to withdraw my
amendment and ask leave to put it in afterwards.

The consent was given.

Mr. Long of Walker called for the yeas and nays on the
amendment of the delegate from Chambers and the call was not sustained and a
vote being taken the amendment of the delegate from Chambers was lost.

MR. LONG (Walker) ‑ I would like to be recorded in
favor of the delegate from Chambers.

2006

OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ The official stenographer will be
instructed to report the gentleman's attitude.

MR. REESE ‑ I now offer my amendment.

The amendment was read as follows: Amend last paragraph of
Section 1 by striking out the word "fixing" in line 33 and insert in
lieu thereof the words "regulating the creation, practice or."

MR. ROBINSON ‑ Has not the previous question been
ordered ?

THE PRESIDENT ‑ The previous question was ordered on
the amendment only.

MR. SAMFORD ‑ Then I move the previous question upon
the paragraph and all amendments.

A vote being taken the main question was ordered, and a
further vote being taken the amendment of the delegate from Dallas was adopted,
and a further vote being taken the paragraph as amended was adopted by a vote
of 73 ayes and 27 noes on division.

MR. O'NEAL ‑ Now I move the adoption of the entire
section as amended and upon that I call for the previous question.

A vote being taken the main question was ordered and a
further vote being taken the section was adopted.

MR. deGRAFFENREID ‑ I rise for the purpose of saying
that I voted for that section with a view and for the purpose of tomorrow
morning moving a reconsideration and I give notice that I will make that motion
to reconsider tomorrow.

MR. WATTS ‑ I make the point of order that the
gentleman did not vote for the adoption of the section in which it was
included.

MR. deGRAFFENREID ‑ I voted for both and for that
special privilege.

MR. JENKINS ‑ I rise to a question of inquiry. Rule 49
says "on the final adoption of a section the vote shall be taken yeas and
nays."

THE PRESIDENT ‑ The same question was raised some time
since and the ruling of the Chair was that the word "section"
following "article" in that rule meant the same thing as article. It
was taken from some rule where the Constitution was divided in sections instead
of articles. It was not intended that there should be a yea and nay vote on the
adoption of every paragraph of every article.

THE PRESIDENT ‑ The question is now on Section 4.

2007

CONSTITUTIONAL
CONVENTION, 1901

MR. PROCTOR ‑ I have an amendment to offer.

MR. DENT ‑ I also.

THE PRESIDENT ‑ The Secretary will read the section
and the pending amendment.

Section 4 was read as follows:

Sec. 4. The operation of no general law shall be suspended
for the benefit of any individual, corporation, association, town, city, county
or township, nor shall any individual, corporation, association, town, city,
county or township be exempted from the operation of any general law.

The amendment of the delegate from Limestone (Mr. Sanders)
was read as follows: Amend Section 4 by adding thereto, "Providing that
nothing in this section or article shall affect the right of the Legislature to
enact local laws regulating; or prohibiting the liquor traffic.

MR. O'NEAL– That has been adopted.

MR. SANDERS ‑ I ask unanimous consent to withdraw that
amendment as the identical amendment has been adopted in the previous section.

Objection was made.

The amendment offered by Mr. Dent was read as follows: Amend
Section 4 of the article on Local Legislation as follows: Strike out the
following words "town, city, county or township" as those words
appear in lines 2 and 3 and also add the word "provided" before the
word "corporation" in the same line and also to further add the word
"or" before the word association in the same line.

MR. WATTS ‑ I offer a substitute for Section 4.

MR. DENT ‑ I had the floor and I want to say a word or
two on my amendment.

THE PRESIDENT ‑ The gentleman's amendments does not
seem to be germane to the amendment of the delegate from Limestone and it might
be better to withdraw the amendment until the Convention votes on the other
amendment.

MR. DENT ‑ With the understanding that I shall then
have the privilege of renewing it, I have no objection.

The Convention assented and the amendment was withdrawn.

MR. O’NEAL ‑ I would like to amend by adding
"except as otherwise provided."

2008

OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ The gentleman will send up his
amendment.

MR. ASHCRAFT ‑ I have that same amendment already
redued in writing.

The amendment was read as follows: "Amend by adding
‘except as in this article otherwise provided.’”

A vote being taken the amendment was adopted.

THE PRESIDENT ‑ The question is now on the amendment
offered by the delegate from Limestone.

MR. WATTS ‑ We have already adopted this identical
amendment and I move to lay it on the table.

A vote being taken the Convention by 45 ayes to 51 noes
refused to table the amendment and a further vote being taken the amendment of
the delegate from Limestone as amended by the amendment of the gentleman from
Lauderdale was adopted.

MR. WATTS ‑ I move that each one of the subdivisions
have that provision tacked on to it.

MR. ASHCRAFT ‑ I am sure if the delegate from
Montgomery understood this amendment he could not possibly object to it.

MR. DENT ‑ I now desire to re ‑ offer my
amendment to the section as it now stands.

The amendment which has shortly before been withdrawn by the
delegate was again read.

MR. DENT ‑ I just desire to say a word or two to the
Convention. This same question was passed upon by the Convention when we
adopted subdivision 9 of Section 1 of this Article and to add the amendment
offered by myself would make it harmonious with this section and besides leave
it just the same as the provision in the Constitution of 1875 in reference to
not granting special favors to individuals, corporations or associations. I
hope the amendment will be adopted.

MR. WADDELL ‑ I move to lay the amendment of the
delegate from Barbour on the table.

A vote being taken the motion to table was lost.

A viva voce vote was then taken on the amendment and a call
for division made by the delegate from Walker, Mr. Long.

MR. HEFLIN ‑ I will withdraw the call for the
division.

THE PRESIDENT ‑ Is the gentleman from Chambers
representing the delegate from Walker? (Laughter.)

2009

CONSTITUTIONAL
CONVENTION, 1901

The vote on the division was taken and resulted 59 ayes and
32 noes, and the amendment was adopted.

MR. LONG (Walker). ‑ I have an amendment.

MR. FITTS ‑ This section with the amendments amount to
nothing and I move to lay the section and all amendments on the table.

THE PRESIDENT ‑ The Chair had recognized the gentleman
from Wilcox.

MR. JENKINS ‑ I ask the clerk to read my amendment.

The amendment was read as follows: Amend Section 4 by
striking out all of said section after "corporation" in the third
line and inserting the word "or" before the word
"corporation" in the third line.

The amendment was read as follows: Amend Section 4 by
providing that the legislature shall never have the power to issue a call for
another Constitutional Convention.

MR. JENKINS ‑ I decline to accept that amendment.

Under this provision I maintain it is impossible to amend
the general law as it goes through the legislature so as to exclude any county
from its operation and I believe if the people of any county, are
overwhelmingly opposed to that law they ought to have the power to exclude that
county from its operation.

MR. DENT ‑ I think the amendment which was adopted
struck out the word county and it does not apply to counties now.

MR. JENKINS– Not only counties but strike out towns and
cities too.

MR. DENT ‑ That has already been stricken.

MR. JENKINS ‑ Then I am in favor of the section and
will withdraw my amendment.

MR. SANDERS ‑ I have a substitute which I believe will
be acceptible to all and which I believe will clear up this muddle.

THE PRESIDENT ‑ The clerk will read the amendment of
the delegate from Limestone.

The amendment was read as follows: No bill introduced as a
general law into either house of the General Assembly shall be so amended as to
except from its provision any individual association. corporation,
municipality, county or township.

MR. deGRAFFENREID ‑ I move to lay that on the table.

A vote being taken the amendment was tabled.

2010

OFFICIAL PROCEEDINGS

MR. CARMICHAEL ‑ I move to lay the section and all
amendments on the table.

MR. O'NEAL ‑ I hope the gentleman will allow me to
call attention to one provision of law before that is done.

THE PRESIDENT ‑ Does the gentleman withdraw the motion
to table.

MR. CARMICHAEL ‑ Yes.

MR. O'NEAL ‑ The provision as amended is the same
provision fund in the present code. That has a wise purpose. I call attention
to a veto by Governor Samford of a bill during the last legislature when a bill
was passed to the effect that all liquor consumed by the members of a club
should not be regarded as sold. It was held that that would be regarded as a
violation of this section. There was also a veto by our distinguished friend
from Montgomery when he was Governor, where a bill was passed providing that
card ‑ playing in a certain club should not be considered as card ‑
playing in a public place. The veto was on the ground that that was a violation
of this section. So this section has a broad purpose.

MR. BOONE ‑ I ask the gentleman to read Section 23 as
it now is in the Constitution.

MR. O'NEAL ‑ I haven't it before me. Will the gentleman please read it?

Section 23 was read as follows:

23. No special or local law shall be enacted for the benefit
of individuals or corporations in cases which are or can be provided for by a
general law, or where the relief sought can be given by any court of this
State; nor shall the operation of any general law be suspended by the General
Assembly for the benefit of any individual, corporation or association.

MR. O'NEAL ‑ Certainly, and on that very question the
Supreme Court says in the case of ex parte City Council of Montgomery in re
Knox:

The cities of Mobile, Montgomery and Selma are excepted from
the operation of the section of the code which forbids cities, towns or
counties, to tax business occupations, etc. Code of 1876, Sec. 499. The
exception is not violative of the last clause of the 23rd section of the fourth
article of the Constitution, which inhibits the General Assembly from
suspending any general law, "for the benefit of any individual,
corporation or association." We do not incline to the opinion, that any
other than private corporations are within the operation of this provision.
But, without expressing any opinion upon that point, we cannot suppose that it

2011

CONSTITUTIONAL
CONVENTION, 1901

was intended to limit the power of the General Assembly,
when enacting general laws, to except from their operation persons or things
which would be otherwise included. If so, the exceptions in the statute of
limitations, in favor of the insane, or of infants, or of married women, would
be violative of the Constitution. It is the suspension, the temporary stopping
of existing laws, for the benefit of individuals or corporations, the
Constitution forbids, and not the power of the General Assembly when enacting
general laws, to determine whether they may be, or may not be, persons or
subjects which ought to be excepted from their operation.

Now certainly no delegate in this Convention wishes to
repeal such a provision as this.

Nobody wishes the Legislature to suspend the operation of a
law that is in existence for the benefit of a corporation, and unless you
insert this provision, you allow the General Assembly to suspend the statutes
on the books for the benefit of individuals and corporation; in this State, and
hence I hope the Convention will vote down the motion to strike this section
from the Article.

MR. PARKER (Cullman) ‑ I move the previous question.

THE PRESIDENT ‑ The question recurs upon the adoption
of the section as amended.

MR. REESE ‑ I call for the reading of the section.

MR. HEFLIN (Chambers) ‑ I move to lay the section on
the table.

MR. O’NEAL ‑ And on that I demand the ayes and noes.

The call for the ayes and noes was then withdrawn.

MR. DENT ‑ It seems to the that we have already
adopted this section as amended. While we were in the act of taking a vote, the
gentleman from Colbert moved to table it, which was not heard by the chair.

MR. O'NEAL ‑ He withdrew it at my request, to allow me
to make some remarks on the subject.

MR. WATTS ‑ I would like to have it read, because I
think it is so absolutely foolish with those amendments in it, that I want the
Convention to hear it.

The clerk read as follows: "The operation of no general
law shall be suspended for the benefit of any individual, corporation,
association, nor shall any individual, private corporation, association, town,
city, county or–

MR. REESE ‑ I would like to be informed what are the
words in the section before the house.

2012

OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ Two secretaries are endeavoring to accommodate the gentleman, if he will be patient.

The clerk continued to read: "The operation of no general law shall be suspended for the benefit of any individual, private corporation, or association, be exempted from the operation of any general law‑

MR. O'NEAL ‑ That is not right. There is no sense in that.

MR. WATTS ‑ That is what I told you.

MR. DENT ‑ That is not the amendment.

THE PRESIDENT ‑ Will the gentleman from Barbour step forward and read it to the Convention?

MR. DENT ‑ I will read it from where I stand: The operation of no general law shall be suspended for the benefit of any individual, private corporation or association, nor shall any individual, private corporation be exempted from the operation of any general law."

The clerk continued reacting: "Provided that nothing in this section or Article shall affect the right of the Legislature to enact local law; regulating or prohibiting the liquor traffic." Amend by adding, "except as in this Article otherwise provided."

MR. DENT ‑ That was stricken out.

THE PRESIDENT ‑ The chair understands it was insisted upon.

MR. ONEAL ‑ Yes sir: as an amendment.

MR. ASHCRAFT ‑ The substitute was adopted in lieu of the amendment of the gentleman from Limestone. I tried to explain it to the chair at the time, but the chair declined to recognize the for the purpose. I knew that the gentleman from Montgomery did not understand it at the time.

MR. O'NEAL ‑ You offered it as a substitute.

MR. ASHCRAFT ‑ Yes, sir.

MR. REESE ‑ I move that the section be recommitted.

To which there were expressions of dissent.

THE PRESIDENT ‑ The previous question has been ordered upon the section as amended.

MR. O'NEAL ‑ I ask it to be react as really adopted. The gentleman from Lauderdale moved a substitute for the amendment of the gentleman from Limestone, and this substitute was adopted, and no one can question that fact. Then it reads with‑

2013

CONSTITUTIONAL CONVENTION, 1901

out all that liquor business being repeated time and again. We don't want to show we are wild on one subject. To put it in once is sufficient.

THE CHAIR ‑ The gentleman from Limestone, Mr. Sanders, offered the following amendment to Section 4: "Provided, that nothing in this section or Article shall affect the right of the Legislature to enact local laws regulating or prohibiting the liquor traffic. Thereupon the gentleman from Lauderdale moved to amend. It is not offered as a substitute, but as

MR. ASHCRAFT (Lauderdale) ‑ I beg the chair's pardon, but I offered it as a substitute.

THE PRESIDENT The paper speaks for itself; it says, amend by adding except as in this Article otherwise provided. This applies directly to the amendment of the gentleman from Limestone, which the Convention refused unanimous consent to withdraw.

MR. ASHCRAFT ‑ But, Mr. President, if I offered it by inadvertance a to amend, and so wrote it there, yet it was offered as a substitute, and so understood by the Convention, and adopted as a substitute.

A VOICE I understood it was an amendment to the amendment.

THE PRESIDENT It was so understood by the chair and so it reads.

MR. O'NEAL ‑ There was a misunderstanding on the subject. and the only way to reach it is to vote over.

To which there were expressions of dissent.

MR. ONEAL  I move that unanimous consent be given to withdraw both, and then put it in shape.

MR. HEFLIN (Chambers) ‑ I will ask the gentleman a question. Is that the amendment that I offered that the committee accepted.

MR. O'NEAL ‑ That has already been incorporated in the other section.

MR. HEFLIN ‑ That is the same section.

MR. O'NEAL ‑ That was incorporated in Section 1. The amendment you offered applies to the whole Article, and then the two amendments apply to the whole Article in the same language. That makes us ridiculous. I do not think that the Convention wants to make this section ridiculous.

2014

OFFICIAL PROCEEDINGS

MR. SAMFORD ‑ I move that the rules be suspended for the purpose of reconsidering the amendment and the substitute.

THE PRESIDENT ‑ The gentleman from Pike moves a reconsideration of the vote whereby the previous question was ordered and the several amendments adopted.

MR. REESE ‑ I make the point of order that the previous question has been ordered, and that the rules of this Convention require amendments shall be in writing, and that they show for themselves; that it is within the province of the chair to inform this Convention of what amendments they have adopted, and the motion to reconsider at this time, or a motion to suspend the rules will not be in order, and even a motion to adjourn is not in order.

MR. SAMFORD (Pike) ‑ My understanding of the same rule is that a motion to suspend the rules of this Convention is always in order.

A DELEGATE ‑ No, sir.

MR. SAMFORD ‑ And especially at this time.

THE PRESIDENT ‑ The chair will examine the question and rule on it.

MR. HEFLIN (Chambers) ‑ I want to make the point of order that the amendment I offered this morning, the committee came to me and wanted me to offer it, and it is the same, it is the identical amendment that we passed on this morning that they now ask to withdraw. In the very same words.

MR. O'NEAL ‑ We adopted it this morning.

MR. HEFLIN (Chambers) ‑ But you ask unanimous consent to take it out.

MR. O'NEAL- That is why I ask the unanimous consent to withdraw it.

THE PRESIDENT ‑ In the opinion of the Chair the Convention can suspend the rules, and that a suspension of the rules will be necessary to reconsider the vote whereby the previous question was ordered. The gentleman from Pike moves that the rules be suspended.

MR. SAMFORD (Pike) ‑ I now move a reconsideration of the vote whereby the amendment of the gentleman from Limestone, Mr. Sanders, was adopted.

THE PRESIDENT ‑ It will be necessary, the Chair would suggest, that the House reconsider the vote whereby the previous question was ordered.

MR. SAMFORD (Pike) ‑ I move to reconsider the vote by which the previous question was ordered.

2015

CONSTITUTIONAL CONVENTION, 1901

And upon a vote being taken the motion was carried.

MR. SAMFORD ‑ Now I move a reconsideration of the vote by which the amendment of the gentleman from Limestone, Mr. Sanders, as amended by the gentleman from Lauderdale, Mr. Ashcraft, was passed.

THE PRESIDENT ‑ In the opinion of the Chair the Convention would have first to reconsider the vote whereby the amendment of the gentleman from Lauderdale was passed upon the amendment of the gentleman from Limestone.

MR. SAMFORD ‑ I make that motion, then, Mr. President.

And upon a vote being taken the motion was carried.

MR. SAMFORD (Pike) ‑ I move a reconsideration of the vote whereby the amendment of the gentleman from Limestone was passed.

And upon a vote being taken the motion was carried.

MR. SAMFORD (Pike) ‑ Now, Mr. President, I move to lay the amendment of the gentleman from Limestone upon the table.

THE PRESIDENT ‑ There is pending the amendment offered by the gentleman from Lauderdale to that amendment.

MR. SAMFORD (Pike) ‑ As I understand it is competent for any member to make a motion under the rules of this Convention, to lay an amendment or substitute, or both, as he chooses, on the table, and leave the other before the House.

THE PRESIDENT ‑ The pending question will be upon the amendment of the gentleman from Lauderdale to the amendment of the gentleman from Limestone, and you cannot get over the amendment by him unless it is withdrawn or disposed of.

MR. SAMFORD (Pike) ‑ I will ask him to withdraw that temporarily by unanimous consent.

MR. ASHCRAFT ‑ I consent to its withdrawal.

To which objection was made.

MR. SAMFORD ‑ I move that the gentleman be permitted to withdraw his amendment.

The motion was carried.

MR. SAMFORD (Pike) ‑ I now move to lay the amendment offered by the gentleman from Limestone, Mr. Sanders, on the table.

Upon a vote being taken the motion to table prevailed.

2016

OFFICIAL PROCEEDINGS

MR. SAMFORD ‑ Now I re ‑ offer the amendment of the gentleman from Lauderdale, Mr. Ashcraft, and I move the previous question upon the section and the amendment.

A reading was called for, and it vas read as follows: Amend by adding "except as in this Article otherwise provided."

Upon a vote being taken the main question was ordered, upon a further vote the amendment being adopted, and a vote was taken and the section as amended was adopted.

The Clerk read Section 5 as follows:

"The General Assembly may by general law confer upon courts of County Commissioners, Boards of Revenue or other courts, such power of local legislation and administration, touching all matters and things not provided for by general law, and not inconsistent with the provisions of this Constitution as the General Assembly may from time to time deem expedient."

MR. VAUGHN ‑ I have an amendment.

THE PRESIDENT ‑ The Convention is considering the report of the Committee on Local Legislation and in that connection is considering such parts of the report of the Legislative Department as bear on the same question.

MR. OATES ‑ The latter part of the report of the Committee on Legislative Department as will be seen, states it will move the substitute

THE PRESIDENT ‑ The Secretary will read the proposed substitute.

It was read as follows: Your committee do not concur in Section 5 of said article as reported by the Committee on Local Legislation, and reports as a substitute therefor Section 25 of Article IV of the present Constitution.

THE PRESIDENT ‑ Does the gentleman from Dallas offer his amendment.

MR. VAUGHN ‑ I desire to offer a substitute to the report of the Committee on Legislative Department.

MR. O'NEAL ‑ If the gentleman will yield to me, to make a statement, I desire to say that the Committee on Local Legislation have reported Section 7, which is the section in the Constitution to which the gentleman from Montgomery refers. We reported it as Section 7, but it is not printed. We had unanimous leave to take it up when this article was under consideration.

MR. OATES ‑ I have not seen that.

2017

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT ‑ It is out of order to discuss the substitute offered by the gentleman from Montgomery until the substitute offered by the gentleman from Dallas is read. That is the pending question.

The substitute was read as follows:

Amend by striking out Section 5, adding in lieu thereof the following: The General Assembly shall pass general laws under which local and private interests shall be provided for, and protected, and under which cities and towns may be chartered and their charters amended, and under which corporations may be created, organized and their acts of incorporation altered and all such laws shall be subject to repeal or amendment.

MR. VAUGHN ‑ That substitute is a copy of a section of the Constitution of Mississippi, which just precedes the exclusion from the legislature of subjects about the same as in the present article, and under that section of the Constitution of Mississippi, the legislature can pass laws whereby towns may enact their local laws. They have operated under it for a number of years and from the statement of the gentleman from Clarke, they have done it successfully, and I offer that as a substitute.

MR. PETTUS ‑ I want to say that this time I am heartily in accord with the section reported by the Committee. I think it is an admirable section, and it is taken from the Constitution of the State of New York. In the Constitution of New York, Article 3, Section 27, occurs this provision: "The legislature shall, by general law, confer upon the Boards of Supervisors of the several counties of the States such further powers of local legislation and administration as the legislature may, from time to time deem expedient." Under this, there are some decisions cited. One was that an act to vest in the Board of Supervisors certain legislative powers for the protection of shell fish is constitutional. Another case cited, is that a law providing for the compensation of certain county treasurers shall be fixed by the supervisors, is valid. Now, the substitute that is offered by the gentleman from Dallas makes it the duty of the legislature to provide by general laws for local interests, but in what manner, and what kind of a general law can the legislature provide for local interests of this character unless it can delegate its power of legislation to some body.

MR. FOSTER ‑ Did you notice the difference between the New York provision and this?

MR. PETTUS ‑ There is no material difference.

MR. FOSTER ‑ This provides the legislature shall confer upon such courts power of local legislation touching all matters and things not provided for by general law. It seems to me to be

2018

OFFICIAL PROCEEDINGS

much broader power than is conferred by the New York Constitution.

MR. PETTUS ‑ It is a question, Mr. President, that is left in the discretion of the General Assembly of this State, and whenever the General Assembly passes a general law, under this section, it denudes itself of that much power and authority. It is not that the General Assembly shall pass these laws, but they may, in their discretion, pass such laws, and I take it that the General Assembly is not going to divest itself of any power of local legislation, or any other power, by its own act, except where the best interests of the people demand it. Now another section exists in the Constitution of New York. They have provided for game laws. They have authorized and delegated by way of local legislation to the Board of Supervisors in the respective counties, this matter of game laws. That was something specifically left out of the prohibition as to which local legislation was cut off, because they did not believe that that power could be delegated to the boards of commissioners in the different counties.

MR. VAUGHN Under the substitute offered by myself, the legislature would not have the authority to delegate that court, or any other body in the county, the authority to enact these local laws.

MR. PETTUS ‑ I think it is a doubtful proposition. I do not think it is near so plain as it is in the section as reported originally by the Committee. Now the proposition which we are confronted with is that we have adopted in the report of the Committee on Local Legislation, and put an absolute inhibition upon the General Assembly of this State, so far as some thirty-five or seven matters of legislation are concerned. We have by constitutional prohibition absolutely cut off the power of the General Assembly to pass local acts upon these different subjects. Now after you have done that, there has got to be some source of relief. There has got to be provided some forum to which the people can turn for relief and legislation on these subjects, and if you cut it off entirely and do not authorize the legislature to delegate this power to some other body in the different counties, or somewhere else, you have left the thing up in the air. The General Assembly is the forum of the people, and if it is wise to cut off this legislation from the General Assembly, then it is the duty of the Constitutional Convention to provide some other body, and some other forum, where relief can be obtained; where legislation can be had upon stock laws, school district, and things of that character, a place to my mind most convenient, and nearest to the people. A forum that is open nearly all of the time is the commissioners court. It is the one body in this State which is most nearly analagous to the Boards of Supervisors in the State of New York. It is a body, to which the humblest citizen of any county may go and

2019

CONSTITUTIONAL CONVENTION, 1901

petition. Any poor person may go before it with his petition or his grievance. The humblest citizen in Limestone county can get on his mule or horse, and ride over to the county seat, and present his petition, and have his side of the case heard. As it is down here in the legislature, it is only the people who have the means to come before the General Assembly to petition in local matters, and bring their influence to bear in a lobby, upon the legislature, to secure the passage of bills of this character. I think, Mr. President, that the Convention, upon consideration and investigation will realize the fact that after they have prohibited the legislature from legislating upon these questions, they must turn to some forum, and provide some channel through which it can be obtained, and I think that the experience of the State of New York, and the conditions in the State of Alabama, make the commissioners courts and the boards of revenue in the different counties, the proper and the best and the most suitable forum to authorize such legislation. Delegate this power to the courts of county commissioners and I am heartily in favor of this provision.

MR. PILLANS ‑ I desire to ask the gentleman a question for information. How long has that been in operation in the State of New York

MR. PETTUS ‑ It is in the printed Constitution that I have in my hands. It was in the Constitution, and amended by the Constitutional Convention of 1894. I do not know just what time this provision was put into the Constitution of New York. In this section it says this was former section 23 of this Article, and was changed to section 27 by the Convention of 1894 and ratified November 6. 1894. It was added by the people November 3rd, 1874, and was in force on January 1st, 1875. It has been in operation for nearly a quarter of a century.

MR. PILLANS ‑ It came in in 75?

MR. PETTUS ‑ Yes, sir.

MR. PILLANS ‑ I would ask the gentleman also whether there is any similarity between the conditions of the County Courts of the great Empire State of the Union, and those of Alabama, in the diffusion of learning or anything of that sort?

MR. PETTUS ‑ Yes, sir, there is a marked similarity. I am not familiar with the diffusion of learning in New York, but I am familiar with the similarity in this respect, that local legislation is necessary in the counties of New York to meet the conditions there and that local legislation is necessary in the counties of Alabama to meet local conditions existing there, and I take it that the people of Alabama are as competent to govern themselves in their different counties and localities as the people of New York, or of any other State.

2020

OFFICIAL PROCEEDINGS

MR. OATES ‑ There is a vast difference in the condition of the people of this State and those of New York. In New York it may be a very good thing, and quite satisfactory, to delegate to the County Commissioners powers of legislation, but in Alabama I think that it is a very dangerous experiment, and one that would not be satisfactory to the people. Now what is the main question here? The delegate from Limestone has shown that the provision reported by the committee is substantially the New York provision. The delegate from Dallas dissents and makes a minority report, and his proposition enumerates several cases, and undertakes to point out the manner by which the General Assembly shall pass general laws.

The Chair will suggest to the distinguished gentleman from Montgomery that the proposition of the gentleman from Dallas is not offered as a minority report. It is offered as a substitute, and the gentleman from Dallas is not a member of the committee making the report.

MR. OATES ‑ I was not aware of it, and I thank the Chair for making the correction. But I will speak to the proposition, and on the principle that inclusion of certain things is an exclusion of others, it makes it very dangerous. There are some gentlemen who have said, and many delegates have claimed, that there are are about thirty ‑ five or thirty ‑ six prohibitions which have been adopted. They are mistaken about that. There are thirty, or thirty ‑ one is the last one to be considered as such. The last was, however, more of a regulation of the manner in which legislation should be effected, but considering and counting it as one, there are but thirty ‑ one, because several have been voted down. My count of it leaves thirty ‑ one. But the amendment offered by the delegate from Dallas does not apply nor provide for the cases presented by these. Not at all. Then construing it as statutes are frequently construed, it may be found to be defective, and too restricted in its provisions. Now, sir, the Section found in the present Constitution has an application to this case, which I think if the gentleman will look at the amendment he will find that it fits exactly, and is just what ought to be provided in the Constitution. The language is the "Legislature shall pass general laws under which local and private interests shall be provided for and protected." Does not that give the Legislature as much power as anything that could be said, and it does not undertake to point out, except the general direction, and authorization, and it is an injunction upon the Legislature that they shall pass laws which shall provide for these private interests and under which they shall be protected.

MR. PETTUS ‑ I would like to ask the gentleman a question. If his remark a while ago about the different conditions in this State, had reference to the ability of the different commis-

2021

CONSTITUTIONAL CONVENTION, 1901

sioners' Courts, does not he think that the additional responsibility would raise the standard of the men in those Commissioners' Courts?

MR. OATES ‑ That is an untried experiment.

MR. PETTUS ‑ Another question. Under Section 25 of Article IV, in the old Constitution, the Legislature could pass a general law to give the people of Swamcut Beat in Limestone County, an anti ‑ stock law?

MR. OATES ‑ Now any legislator who will address himself to the work and who is at all learned in the law, will find not much difficulty in framing general laws under which nearly every one of these things, and in fact all of them, can be readily performed, and to commit it to the County Commissioners, why sir, while we have in a good many counties very able men on the Boards of Revenue and County Commissioners, we have in other places and at other times, some men who are not very capable. I know in a county not a great ways from Montgomery where a man served as County Commissioner for many years, and could not write his name. While he was a man of good judgment on matters which were presented to him, and could pass fair judgment on them, but illiterate men, in a sparsely settled country, are not very capable of handling these various questions. My opinion is that if you commit it to them, you will have more litigation and trouble, as there will be a greater contrariety of opinion and greater differences, under what is supposed to be the general law in the different counties. Why it will be worse than local legislation now. Why, sir, a safer and better plan is to authorize the Legislature, as the amendment which I offered does, in a simple way, and make it the duty of the Legislature to pass these laws. Now the amendment offered by the delegate from Dallas, my recollection is, from the reading of it, the General Assembly may do it. I think it is better to employ the word "shall" though in a statute where the public are interested, the word "may" is considered as meaning "shall." But it is better to use the word, which is intended to be employed, the Legislature shall pass general laws, under which local and private interests shall be provided for and abrogated. That language is simple and plain, and it occurred to me that it was decidedly the best. It was better than any speculative language. It cannot be misconstrued, but it gives all the authority to the Legislature that you can give under anything, and it is better a long ways than when you undertake to give a supposedly larger jurisdiction by a specification of what they may do. It is stated in so many words here, and it is to be presumed that the Legislature, and especially the Judiciary Committee of the two houses, which would have this work to do, putting it in that plain and unmistakable language, would carry out the provision, and if you risk the Legislature, as I think you certainly can, you cannot employ more proper and plainer language.

2022

OFFICIAL PROCEEDINGS

MR. O'NEAL ‑ I ask the Clerk to read the amendment offered by the gentleman from Dallas.

MR. VAUGHN ‑ I desire to withdraw the amendment. I did not know at the time that there was a minority report, and that Section 25 and Article IV. of the present Constitution is practically the same as my amendment, and I will withdraw my substitute.

THE PRESIDENT  The Chair does not understand that there is a minority report. The Chair will explain that the proposition offered is by the Legislative Committee, which is being considered in connection with the report of the Committee on Local Legislation, and while it is not a minority report, it subserves the same purpose. It is offered as a substitute.

MR. VAUGHN  That being the case, I ask consent to withdraw my substitute.

There being no objection, the substitute was withdrawn.

MR. ONEAL  The reasons that actuated the committee in suggesting this section, was a doubt as to whether the Legislature, in the absence of a constitutional provision, could vest legislative powers in the Commissioners Courts, or any other court of like jurisdiction. Now, the gentleman from Montgomery says that Section 25 of the present Constitution covers te same purpose. We have offered as an amendment to our report Section 25 of the Constitution of 1875 as Section 7. This section provides that the General Assembly shall pass general laws under which local and private interests shall be provided for and protected. That does not confer upon any other tribunal legislative power. Now, it is the general principle of the law, which the delegates in this Convention will recognize, that the Legislature cannot vest in any other tribunal its legislative powers. It cannot delegate its legislative powers. On this subject, Mr. Cooley, in his work on Constitutional Limitations, says : One of the settled maxims in constitutional law is that power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it remains, and by constitutional agency alone laws must be made to remain until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted, cannot relieve itself of the responsibility by choosing agencies upon which the power shall be devolved. Nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone, the people have seen fit to confide this sovereign trust."

Now we are not wedded to the Commissioners' Court, or any other court. All that we desire is to confer upon the Legislature

2023

CONSTITUTIONAL CONVENTION, 1901

power to delegate certain legislative authority to another tribunal, that in their wisdom may be necessary to be created in that county.

MR. OATES ‑ I would like to ask, as I suppose if the Convention authorizes this delegation of powers, it would stand, but it is a dangerous thing, and I am doubtful whether they can do it or not. I will ask the delegate from Lauderdale if he and a dozen more able lawyers, could take up this Constitution and frame general laws by which all of these things could be provided for before the Courts of County Commissioners alone? Some things are proper to he referred to them. Some other things to be provided for might be done by other courts. Could you not frame general laws under which everything could be accomplished?

MR. O'NEAL ‑ I agree with the gentleman from Montgomery that the Legislature could frame laws under which almost everything can be provided for. Now, the section which has already been adopted, expressly requires the Legislature to provide general laws to embrace all the subjects as to which they are prohibited from enacting special laws. They are required by the mandate of this article, which has been adopted, to pass general laws on all these enumerated subjects, and they are required to pass general laws on all other subjects, but we call see no impropriety for the Legislature to vest in the Commissioners' Courts power to change a man's name, power to change the names of a corporation; powers, if necessary, to relieve the disabilities of non ‑ age, or the power to locate stock districts.

MR. OATES ‑ I want to ask the delegate if the law does not now vest the Probate Judge, for instance, with the power of doing several of those things?

MR. O'NEAL ‑ We do not say the Commissioners' Court in the section, but Commissioners' Courts, Boards of Revenue, or other courts. They could vest it, then, under this, in the Probate Court, in the Circuit Court or in any other court. We simply wanted to put a provision in here that in all these small matters of detail in the county, if it was ascertained that a general law could not sufficiently provide for it, then the Legislature should give this power to some court in the county, to exercise legislative jurisdiction.